A federal judge in Texas ruled the Indian Child Welfare Act was unconstitutional in early October – something that’s never happened since the law was enacted in 1978. Court appeals were immediately filed in response.
The ICWA was designed to prevent the separation of Native children from their parents and extended families by state child welfare and private adoption agencies.
Since the October ruling, Indian Country has kept close tabs on developments regarding the ICWA. Some of what has unfolded has been encouraging, although experts say the situation is still far from resolved.
In early December, the U.S. Fifth Circuit Court of Appeals granted a stay on the ruling by U.S. District Judge Reed O’Connor of the Northern District of Texas. The stay means the ICWA is still the law of the land in all 50 states pending appeal.
“The critical work between states and tribes to apply the gold standard in child welfare by keeping Indian children with their family and community will continue,” a joint statement released by five national Native American organizations stated soon after the stay was granted.
O’Connor’s ruling argued that the ICWA “illegally gives Native American families preferential treatment in adoption proceedings for Native American children based on race.” He found that the law was in violation of the Fifth Amendment’s equal protection guarantee in the U.S. Constitution.
The Brackeen vs. Zinke case was brought by a Texas couple who sought to adopt a Native American baby – one whose biological parents were from the Cherokee and Navajo tribes. The couple fostered the baby from the time he was 10 months old to age two.
The couple initially sought to adopt the male child with the support of the baby’s biological parents. But a family court in Texas prevented the plans, blocking the adoption on the grounds of the ICWA. The couple sued a year ago and were joined in the suit by the states of Texas, Louisiana and Indiana.
The Cherokee Nation and several others intervened as defendants.
While the ICWA does not bar non-Native families from adopting or fostering Native American children outright, in order for a non-Native family to succeed, they have to show “good cause” that the child can’t or shouldn’t be adopted by other Native Americans – a main hurdle for the parents in this case, experts have said.
“The Fifth Circuit made the right decision. ICWA is not some new, unimplemented statute that can be set aside without repercussions. It is an Act of Congress, 40 years tried and true that is intricately woven into state and tribal child welfare systems,” said a statement by Native American Rights Fund staff attorney Dan Lewerenz of the Iowa Tribe of Kansas and Nebraska.
“Its unraveling would have had serious and harmful effects on dozens, if not hundreds, of Native children. We’re glad that the Fifth Circuit recognizes that,” he said.
NARF was one of the groups issuing statements supporting the stay that was granted.
“The ICWA is a great success we achieved in our past and it’s under attack,” said National Congress of American Indians President Jefferson Keel at the group’s annual conference in late October. “We are in a war. We’ve been in one since 1492. We need allies on both sides of the aisle. With this administration, we are in a war,” he said.
Keel was referencing President Donald J. Trump and what he and others see as an overall lack of support for Native Americans by his administration.
Meanwhile, some experts believe the case could eventually make its way to the U.S. Supreme Court.