A court decision on October 4, 2018 has major implications for future adoption cases. In Brackeen v. Rinke, Judge Reed O’Connor—a federal judge for the Northern District of Texas—ruled that the federal Indian Child Welfare Act, commonly referred to as ICWA, is unconstitutional in its entirety on multiple grounds. The 40-year-old law has withstood numerous legal challenges through the years but had previously never been found to be unconstitutional. If ICWA is indeed tossed out, adoption, as it is currently practiced nationwide, will never be the same.
To understand the ramifications of ICWA being struck down, it is necessary to understand what ICWA is and how it applies to every adoption case. ICWA was first passed by Congress in 1978. The intent of the federal legislation was to preserve the integrity of Native American tribes. At the time of ICWA’s passage, approximately one-third of Native American Indian children were being taken from their families in state cases and placed in foster care or for adoption. The law’s provisions aim to protect American Indian children from being separated from their tribes and families by state child welfare systems.
ICWA sets forth placement preferences for an “Indian child” in the case of foster care and adoptive proceedings. In “any” foster care of pre-adoptive placement, these preferences must be given in the absence of “good cause” otherwise. To meet the aim of the legislation, these preferences direct placement with Indian family members, in Indian foster homes, or in Indian-approved or run institutions.
So what does all this federal law have to do with a typical adoption in your state? It imposes hoops to be jumped through so that the intended adoption can go forward. In every case, evidence must be presented to the court that the child being adopted is not an “Indian child” as defined by ICWA. Why? Because if ICWA applies, then the statutory preferences must be observed. An Indian family member, etc. would trump a non-native prospective adoptive parent for placement of the child.
The Brackeen case offers a good example of how ICWA preferences can play out in the real world. At issue in Brackeen was the denial of the attempts of three non-native American foster parents to adopt the Native American Indian children whom they had been fostering. The Brackeens were a white couple who desired to adopt a 2-year-old boy, part Navajo and part Cherokee, who had been in their home as a foster child for almost all of his life. Their petition to adopt was denied based on ICWA because they were not a preferred placement under the statute, so they filed suit in federal court challenging ICWA’s constitutionality. The states of Texas, Louisiana, and Indiana, along with two other foster parents whose petitions to adopt a Native American foster child had been denied, joined in the lawsuit against Ryan Zinke, the Secretary of the Department of the Interior, and others.
Brackeen involved children who were clearly Native American. But determining who is an “Indian child” for purposes of ICWA is not always an easy proposition. First, the child’s tribal ancestry must be determined. This effort is complicated when the birth father is unknown or cannot be located. Next, it must be ascertained if the ancestral tribe is federally recognized because ICWA only encompasses those tribes who are federally recognized. Even if the tribe is federally recognized, it must still be determined if the child is eligible for tribal membership or is the biological child of a tribe member. Eligibility requirements for tribal membership are set by each tribe, and 564 tribes are federally recognized. Sound complicated? It is. And this ICWA inquiry must be conducted in every adoption case which is filed.
Legal challenges to ICWA have been on the rise in the last several years. The law received much publicity back in 2013 when the United States Supreme Court heard Adoptive Couple v. Baby Girl, more familiarly known as the Baby Veronica case. In that case, the biological father, a citizen of the Cherokee Nation was pitted against the adoptive parents in whose custody the child had been since her birth. SCOTUS ruled that ICWA did not prevent the biological father’s rights from being terminated because he had never had custody of the child.
While the Baby Veronica case applied the language of ICWA to reach the outcome, Brackeen found that ICWA was constitutionally flawed and could thus not be applied to the case before the court. Not only did Judge O’Connor find that ICWA is unconstitutional, but he found it to be unconstitutional on multiple grounds, including Equal Protection (based on race) and the Tenth Amendment (requires states to enforce federal law).
Does the Brackeen decision mean that ICWA is dead? The best answer at this point is maybe. Within a week after Judge O’Connor’s ruling, the Cherokee Nation, the Oneida Nation, the Quinault Indian Nation, and the Morongo Band of Mission Indians asked the judge to stay his decision (i.e., place its effect on hold) pending an appeal to the U.S. Circuit Court of Appeals for the Fifth Circuit. An official statement by various Native American groups has characterized Brackeen as an “egregious opinion” which they “vehemently reject”; moreover, they have vowed to fight this “disturbing ruling” and to uphold ICWA and tribal sovereignty.
Custer’s Last Stand may have been an armed effort for Indians to preserve their way of life, but the appeal of Brackeen will be a legal effort by Indians to preserve ICWA’s provisions to uphold tribal integrity. Given the impact of throwing out a long-standing law such as ICWA, Brackeen could be headed all the way up to the U.S. Supreme Court. The appeals process is slow, so the effect of the Brackeen decision will play out over time—perhaps even a year and a half or more. In the meantime, the safest adoption practice is to comply with ICWA provisions.