A Texas federal judge has declared that the Indian Child Welfare Act, a landmark law that places preference in the adoption of Native American children with American Indian tribes, is unconstitutional.
The decision in Brackeen v. Zinke focused on three non-Native American foster families who were seeking to adopt Native American children but were threatened with having them removed from their homes and placed with tribes under the ICWA.
The parents were later joined by three states including Texas, Louisiana and Indiana, which sought to declare certain portion of the law unconstitutional because it mandates racial and ethnic preferences in violation of state and federal law.
Congress passed the ICWA in 1978 in response to abusive child welfare practices that resulted in the separation of large numbers of American Indian children from the homes and families through foster care and adoption, which usually placed them in non-Native American homes.
The law requires provides that absent good cause, Native American children are to be placed with a member of the child’s extended family, other members of the child’s tribe, or other American Indian families, in that order. And in 2016, the Bureau of Indian Affairs passed a final rule ensuring that the ICWA is applied in all states.
The plaintiff parents and three states sought to overturn the laws by arguing that both the ICWA and the final rule implement a system that mandates racial and ethnic preferences in direct violation of state and federal law. The sought for the laws to be declared invalid as a violation of due process and the ICWA violated the equal protection guarantee of the Fifth Amendment among other arguments.
The federal government was joined by numerous Native American tribes who filed amicus briefs arguing that the ICWA should be protected because it furthers rather than hinders the best interests of Native American children.
In his ruling, U.S. District Judge Reed O’Connor of Fort Worth agreed with the plaintiffs’ arguments and concluded that the ICWA and its racial qualifications were written too broadly to withstand strict scrutiny review.
“The ICWA’s racial classification applies to potential Indian children, including those who will never be members of their ancestral tribe, those who will ultimately be placed in non-tribal family members, and those who will be adopted by members of other tribes,” O’Connor wrote. “Because two of the three preferences have no connection to a child’s tribal membership, this blanket classification of Indian children is not narrowly tailored to a compelling governmental interest and thus fails to survive strict scrutiny review.”
“Under our Constitution, racial discrimination is presumptively invalid and we showed the court that ICWA’s blunt form racial discrimination is not remotely necessary to preserve Indian tribes or their culture,” McGill said. “Ultimately our opponents did not even dispute the point. There obviously are many, many things the federal government can do to strengthen Indian tribes and their families without discriminating on the basis of race.”
JoAnn Kintz, a U.S. Department of Justice attorney who represented the federal government in the case, declined to comment about the ruling.
McGill said the most important part of the decision is that his clients will get custody of the children they are seeking to adopt.
“For my clients, this about their kids. There is nothing more important to them in the world,” McGill said. “Nine months ago, the Cliffords’ 7-year old foster daughter was taken from them because an Indian tribe, after six years, declared that little girl to be a tribal member. This decision gives them a chance to get their little girl back.”