On October 4, a ruling by the U.S. District Court for the Northern District of Texas, Brackeen V Zinke, Judge Reed O’Connor ruled that the Indian Child Welfare Act (ICWA) is unconstitutional in its entirety based on the Equal Protection Clause and the 14th Amendment. The judge wrote that ICWA’s racial classification of children has not been shown to serve a “compelling governmental interest.” ICWA covers any child who is either a member of a federally recognized tribe/Alaska Native Village or is eligible for membership in a federally recognized tribe/Alaska Native Village and is the biological child of a member of a federally recognized tribe/Alaska Native Village.

The Judge found that the ICWA illegally gives Native American families preferential treatment in adoption proceedings for Native American children based on race, in violation of the Fifth Amendment’s equal protection guarantee. O’Connor ruled that the law violated the 10th Amendment’s federalism guarantees, specifically the “anti-commandeering” principle established by the Supreme Court. In his ruling he dealt with tribal laws as a matter of race rather than a government to government issue—the very basis of ICWA.

CWLA issued a statement criticizing the ruling, stating that the ruling “jeopardizes this landmark child welfare and child protection law and opens the door to weakening current protections for tribal children. Further, it ignores the direct federal government-to-government relationship”
Judge O’Connor’s ruling ignores the unique political status of American Indians and Alaska Natives (AIAN). Tribal governments are not race-based and their authority and sovereignty pre-exists the United States.

The ruling is in response to a lawsuit supported by Texas, Louisiana and Indiana dealing with three adoption cases. The plaintiff parents had sued the U.S. government and several federal agencies and their leaders to argue that ICWA is unconstitutional. Four tribal nations later signed on as defendants. This is the first time a federal judge has ruled that ICWA is unconstitutional according to the Indigenous Law and Policy Center at Michigan State University.

In 1978, Congress passed S 1214, the Indian Child Welfare Act (ICWA) to stop the unjustified taking of children, no matter the rationale. Senator James Abourezk (D-SD), sponsor of ICWA said in a hearing in 1977:

                   “Indian parents and their children have been at the mercy of arbitrary or abusive action of local, State,  Federal and private agency officials. Unwarranted removal of children from their homes is common in Indian communities. Recent statistics show, for example, that a minimum of 25 percent of all Indian children are either in foster homes, adoptive homes, and/or boarding schools, against the best interest of families and Indian communities. Whereas most non-Indian communities can expect to have children out of their natural homes in foster or adoptive homes at a rate of 1 of every 51 children, Indian communities know that their children will be removed at rates varying from 5 to 25 times higher than that.”

Because of poverty and discrimination Indian families face many difficulties, but there is no reason or justification for believing that these problems make Indian parents unfit to raise their children; nor is there any reason to believe that the Indian community itself cannot, within its own confines, deal with problems of child neglect when they do arise. Up to now, however, public and private welfare agencies seem to have operated on the premise that most Indian children would really be better off growing up non-Indian…

The Federal Government for its part has been conspicuous by its lack of action. It has chosen to allow these agencies to strike at the heart of Indian communities by literally stealing Indian children. This course can only weaken rather than strengthen the Indian child, the -family, and the community.”

Before ICWA, child removal was sometimes based in moral, religious, or imposed child welfare concerns, but often there was little to no rationale at all. ICWA provided that tribal governments, as sovereign entities, could make decisions about the placement of children. Previously, it had been a patchwork of agencies with overlapping or conflicting jurisdictions. The passage of ICWA made it explicit that tribal courts, not state governments, retained the authority to place their children—who are tribal citizens—in adoptive or foster homes.

In 2001 CWLA formally apologized for its role in an “experiment” by the Bureau of Indian Affairs that between 1958 and 1967 removed 395 Indian children from their tribes and cultures for adoption by non-Indian families. That action is not surprising in light of earlier history by federal and state governments in the late 19th and early 20th centuries that forced Indian children to leave their homes and tribes to attend boarding schools in an effort to change their culture.

The intent behind ICWA is to preserve cultural and family ties among Native American children and families and to ensure respect for tribal authority in decisions concerning the placement of Indian children in out-of-home care.

For the past 40 years, ICWA has been an important law that has allowed tribes to regain a measure of self-governance and a re-establishment of their authority. Just as with the all children, keeping children in their communities and families is the goal because the practice can reduce trauma and harm for children.

As of 2015 there are 566 federally recognized American Indian and Alaskan Native tribes. The largest population of Native Americans is concentrated in 13 states and includes more than 646,000 people.

ICWA requires states to identify Indian children and notify the child’s parents and tribe of their rights to intervene in a custody proceeding. It also requires certain procedures regarding the use of tribal courts, child custody proceedings, tribal intervention standards, and placement preferences. The act establishes a two-part requirement for states before they remove an Indian child, which involves efforts to prevent the breakup of the Indian family.

In 2005, Congress, including some critics of ICWA, directed the Government Accountability Office (GAO) to study the impact of the law and, in particular, to determine if the ICWA requirements were causing delays in the placement of Native American children. The GAO study concluded that the ICWA requirements did not result in poorer outcomes for children. Few states researched by GAO kept detailed information, but states that did provided sufficient data demonstrating that there was no clear link or evidence ICWA was harmful in its impact.

The current Texas ruling appears to be limited in its impact nationwide since it is a district court. The ruling is expected to be appealed to a federal appeals court. A federal appeals court ruling saying that ICWA is unconstitutional would likely apply only to that circuit (states in that circuit) but would also likely end up before the U.S. Supreme Court.

About the Author:

John Sciamanna is CWLA's Vice President of Public Policy.

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