Legal Review: Rules Governing the Adoption of Native American Children Being Challenged in Appeals Court

By Family Law Attorney Charles W. Wheland of Yates & Wheland.

Since 1978, the Indian Child Welfare Act has been law, requiring Native American children to be raised by parents that are of Native American descent.

This Federal law was passed in response to over 100 years of forced “civilization” that put many native American children into the homes of Catholic, white families where they lost their culture.

In recent years, however, this law has been challenged by non-native American families wishing to adopt children of native American descent. Now, the ICWA is being challenged in a Federal appeals court. The case began in 2017 when Chad and Jennifer Brackeen sued the US Interior Department after a child they had fostered for over 16 months was taken away.

The couple had intended to adopt the baby, called ALM by the courts, but the state argued that although the couple was granted permission to adopt the child from its parents and grandparents, they did not receive permission from the tribes of the child, which in this case was the Navajo nation and Cherokee nation. When the couple discovered that they were barred from adopting the child, they filed suit in a Texas State court.

Despite the state finding a Native American family in New Mexico to take the child, the family changed their mind. A court first heard their case in October 2018, where the judge ruled in their favor, saying the act was unconstitutional and that the children’s race was put before it’s welfare. The couple was granted the right to adopt the child, and are now trying to adopt the sister of baby ALM.

That court decision was challenged by the plaintiffs, the Morongo, Quinault, Oneida and Cherokee tribes, and a Federal judge panel listened to the case again in March 2019. In March, however, the case was overturned 2-1. The judges who ruled to overturn said that the ICWA is more than about race, it is about politics as well, saying that the definition of an Indian child is broad.

The plaintiffs in the case appealed the ruling this past March. The case will now be heard at a later date that is yet to be announced. The 5th Circuit decided that when they do rehear the case, it will be en blanc.