Indian Child Welfare Act Declared Unconstitutional

A decision of the United States District Court Fifth Circuit deems that the Indian Child Welfare Act is unconstitutional, AAAA announces.

Lita Jordan October 11, 2018
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A monumental decision was handed down from a Fifth circuit district court on October 4th declaring the Indian Child Welfare Act (ICWA) unconstitutional. The ICWA established in 1978 is a federal law intended to protect the culture and familial identity of Native American children by ensuring that every effort is made to place the child with a tribal family before allowing him or her to be placed with a non-native family. The landmark ruling has been at the forefront of many high-profile adoption disputes. Its dissolution could change the outcome of many adoption cases.

As reported by PRWeb, the ruling came down from a federal judge in the case of BRACKEEN v. ZINKE, in the Northern District of Texas. The case was brought through the courts by the Academy of Adoption and Assisted Reproduction Attorneys (AAAA) and their clients, including adoptive parents. The case struck a chord with the federal judge as he ruled against many regulations covered by the ICWA.

Bizjournal by way of PR Newswire shared, “The court struck down almost all of ICWA and its new 2016 regulations on multiple grounds, including under the equal protection clause (on the basis that the placement preferences and certain other provisions in ICWA are unconstitutionally race-based in nature), the “non-delegation clause” (that 1915(c) unconstitutionally delegates federal authorities to tribes), the anti-commandeering clause (on the basis that ICWA unconstitutionally commandeers states to carry out federal duties), and the Administrative Procedure Act (on the basis that the new regulations were promulgated without authority).”

As reported by The Washington Post, the case began with Chad and Jennifer Brackeen of Texas, who were adopting a baby boy whom they had fostered. While they had the support of the biological parents, a Texas family court stepped in to attempt to deny the adoption on the basis of the ICWA. While they were ultimately able to adopt the child, they continued in a suit with the states of Texas, Indiana, and Louisiana in an effort to change or remove the ICWA.

The Washington Post noted that it was Federal Judge Reed O’Connor who struck down the act, noting primarily its discriminatory nature. While the AAAA and its plaintiffs count this as a victory, some Native American activists find the ruling destructive and dangerous to many.

Dan Lewerenz of the Native American Rights Fund told The Washington Post, “The decision is jarring, and not just for its effect on ICWA, but because as far as I know this is the first time ever that a federal statute enacted to benefit Indians has been found to be unconstitutional on the grounds of equal protection. It introduces perhaps an entirely new world of Indian law. And we worry that this might be what the plaintiffs intend, that this is not just an effort to undermine ICWA, but to undermine all Indian law.”

While the ruling is a huge victory for many adoptive parents and the AAAA, the fight is not yet over. The Washington Post notes that the Supreme Court has previously upheld and ruled in favor of Indian rights. It is likely this suit will continue to higher courts to make a final determination. The law firm of Kilpatrick Townsend & Stockton representing the tribes released a statement saying, “We remain steadfast in our commitment to defend the constitutionality of ICWA by all available means for one simple reason. If ICWA is struck down in whole or in part, the victims will be our children and our families, Native children and Native families.”

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Lita Jordan

Lita Jordan is a master of all things "home." A work-from-home, stay-at-home, homeschooling mother of five. She has a BA in Youth Ministry from Spring Arbor University. She is married to the "other Michael Jordan" and lives on coffee and its unrealistic promises of productivity. Lita enjoys playing guitar and long trips to Target. Follow her on Facebook.


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