Judge Rules Indian Child Welfare Act Unconstitutional

A U.S. District Court Judge in Texas has ruled the Indian Child Welfare Law Act (ICWA) unconstitutional, calling it a race-based policy. The decision could reverse a 40-year-old federal law to protect indigenous families and cultures.

Expect an appeal all the way to the U.S. Supreme Court.

About ICWA

Congress passed ICWA to stop one of the many brutal forms of government assimilation policies against indigenous peoples in the mid 1900s. Prior to the 1978 act, “as many as 25 to 35 percent of all Indian children were being forcibly removed, mostly from intact American Indian families, and placed in non-Indian homes, with a deliberate absence of American Indian cultures,” Wikipedia said. “Congress’s overriding purpose in passing the ICWA was to protect Indian culture and tribal integrity from the unnecessary removal of Indian children” by the state.

ICWA mandates preferences for how Native children are placed in foster care or adoption, according to the court’s summary. For instance, ICWA requires that “in any adoptive placement of an Indian child under State law, a preference shall be given, in the absence of good cause to the contrary, to a place with: (1) a member of the child’s extended family; (2) other members of the Indian child’s tribe; or (3) other Indian families.”

The case, Brackeen v. Zinke, involves three indigenous children in adoptive or foster care with non-indigenous families.
Plaintiffs include three states — Texas, Louisiana, and Indiana, and seven individuals who want ICWA overturned. Defendants are the Cherokee Nation, Oneida Nation, Quidault Indian Nation, and the Morongo Band of Mission Indians who want ICWA upheld. U.S. Department of Interior Secretary Ryan Zinke also is a defendant, since the department includes the Bureau of Indian Affairs (BIA). The BIA writes guidelines for enforcing ICWA.

About the Judge

Judge Reed O’Connor, a George W. Bush appointee, issued the decision. He’s the same judge who has consistently ruled against LGBTQ community issues. He has ruled against health protections for people who are transgendered, and temporarily blocked an Obama administration directive allowing transgendered students to use school bathrooms and locker rooms consistent with their chosen identity. (See this LA Times story and this law.com story.)

About the Case

Prior to O’Connor’s Oct. 4 decision, the Cherokee Nation and others filed a motion for summary judgement: asking the judge to reject the argument that ICWA is a race-based law. “[T]he Supreme Court has consistently held that a classification of Indians is a political classification, not a race-based classification,” it wrote. “… ICWA is triggered by a political affiliation: enrolled membership (and eligibility for it) in a sovereign nation—not ancestry …”

O’Connor sided with the Plaintiff’s, writing:

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 with non-tribal family members, and those who will be adopted by members of other tribes. 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 …

After the decision, The Partnership for Native Children released a statement calling it “out of step with the law and decades of constitutional jurisprudence.”

Emboldened by the Adoptive Couple v. Baby Girl decision in 2013, these anti-ICWA forces — led by the adoption industry, religious coalitions, and a conservative think tank — have spent years bringing forth suit after suit in courts throughout the country, sometimes even using identical briefs in different forums, all in the attempt to have ICWA declared unconstitutional. After losing each case, due in part to their outrageous contention that ICWA is a race-based law (it is not), they have finally found a judge in the United States District Court for the Northern District of Texas sympathetic to their arguments.

Tara MacLean Sweeney, the Assistant Secretary for Indian Affairs in the U.S. Department of Interior, issued a statement today on the ruling:

For nearly forty years, child advocacy organizations across the United States have considered the Indian Child Welfare Act to be the gold standard of child welfare policy. The Department of the Interior strongly opposes any diminishment of ICWA’s protections for Indian children, families, and tribes.

The Department will continue to work with tribes and states to implement ICWA moving forward. We reiterate our support for ICWA’s goals of ensuring the safety of Indian children, maintaining Indian families, and promoting tribal sovereignty.

Here’s additional news coverage:

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