The Indian Child Welfare Act

A lawsuit filed by a non-Native American couple in Texas claims the ICWA discriminates on the basis of race and infringes on states’ rights. It will be heard by the U.S. Court of Appeals for the 5th Circuit.

The federal law, passed in 1978, mandates that states prioritize placing Native American children up for adoption with members of their family, their tribe or other Native American families — a remedy to policies that had previously empowered the government to take native children from their parents without cause and eradicate their tribal identity.

The Texas couple, Chad and Jennifer Brackeen, sued the U.S. Interior Department in 2017 after their petition to adopt a Native American toddler they had fostered for more than a year was challenged in state court. Texas Child Protective Services had removed the boy, called A.L.M. by the court, from the custody of his paternal grandparents and placed him in foster care with the Brackeens.

He lived with them for 16 months, according to court documents. They sought to adopt him with the support of his biological parents — members of the Navajo Nation and Cherokee Nation — and his paternal grandparents. The ICWA requires, however, that a child’s tribe be notified before an adoption placement is approved.

The Navajo Nation located a nonrelative Native American family in New Mexico willing to adopt the boy, though that placement ultimately fell through. The Brackeens eventually successfully petitioned to adopt A.L.M. and are trying to adopt his younger sister.

In October 2018, a federal judge in the Northern District of Texas agreed that much of the ICWA is unconstitutional. Defendants in the case, include the federal government and the Morongo, Quinault, Oneida and Cherokee tribes. They have appealed that decision.

The Circuit Judge, James L. Dennis, wrote that the ICWA aimed to classify children not by race, but by politics. The definition of “Indian child” under the law is broad, he wrote, and extends “to children without Indian blood, such as the descendants of former slaves of tribes who became members after they were freed, or the descendants of adopted white persons.”

In a statement affirming ICWA intentions, tribal leaders wrote –

“We never want to go back to the days when Indian children were ripped away from their families and stripped of their heritage.”

The ICWA was passed in 1978 in response to what was viewed as a family separation crisis for American Indian and Alaska Native communities. Studies showed that 25 to 35 percent of all native children were being removed, and of them, 85 percent were placed in homes outside their families or tribes. This happened even when suitable family members were willing to foster or adopt.  Those trends followed decades of mistreatment of Native American communities by the U.S. government.

3 thoughts on “The Indian Child Welfare Act

    1. If it weren’t for the difficult issues related to transracial adoption, the discrimination based on race might be valid. If it weren’t for the history of taking away the children to erase their culture, it may not have been a necessary attempt to reconcile the damage.

      Liked by 1 person

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.