The Indian Child Welfare Act (ICWA) of 1978 was struck down this month, as unconstitutional, by a federal judge in Texas. ICWA is a federal law that pertains to every domestic adoption, private and foster. The law was enacted in response to a practice of removing Native American children from their families and placing them in non-Native American homes. At that time, intentional separation of native children from their families, culture and language was thought to be in their best interests and many agencies were proponents of their assimilation with white families. ICWA was enacted to protect and strengthen Native American parental rights. When a child was removed, state courts were mandated to institute placement preferences starting with a child’s extended family members, then other members of the child’s tribe, and finally by members of other Native American tribes.
Judge Reed O’Connor determined that ICWA discriminates against non-Native American adoptive families by giving preference based on race, in all domestic adoption proceedings, thereby violating the Fifth Amendment’s equal protection under the law guarantee. The judge also ruled that the law violates the Tenth Amendment’s federalism guarantees, specifically the anti-commandeering principle, which was established by the Supreme Court in a 2018 sports gambling case. Specifically, the judge found that ICWA unconstitutionally mandated that state courts implement a policy dictated by the federal government. Pennsylvania and California have used this same argument to block the Trump administration from cracking down on sanctuary cities. In short, Congress cannot command states to modify their laws.
ICWA was passed to correct an unfair and disproportionate pattern of removal of Native American children. In the late 1970’s, data showed approximately 25 to 30 of Native American children were removed from their homes by non-tribal public and private agencies and placed outside the tribes for adoption. The children were losing touch with their families and their culture. This ruling has stunned Native American rights advocates. Fears are that Native American children are far more likely to be removed from their families than nonnative children and this ruling, if upheld, may jeopardize decades of legal precedent affecting tribal sovereignty. Additionally, there is concern that this will have a chilling effect on all Indian law. This is the first time that a federal statute enacted to benefit Indians has been found unconstitutional on the grounds of equal protection. ICWA does not impose an all out bar on non–Native American families from adopting or fostering Native American children, but it requires they show “good cause” that the child cannot or should not be adopted by other Native Americans.
The judge ruled that ICWA was not “narrowly tailored” enough because any Native American family would be given preference over a nonnative family as adoptive parents, even if the child did not belong to the same tribe. The judge also objected to the fact that even children who were not officially members of a tribe, but whose biological parents were members, would still qualify for ICWA. The judge called these children “potential Indian children”.
As an ICWA declaration is required in every domestic adoption in the United States, private and foster/public, this ruling has thrown a measure of uncertainty into the formula for children with Native American ancestry, the ability of their birth parents to select adoptive parents and those wishing to adopt.