February 1, 2019
Could a federal law that hurts Native American children be on its last leg?
In yesterday’s Washington Post, Texas Attorney General Ken Paxton wrote about the case of the Brackeen family, whose efforts to adopt the young Native American foster child they’d been caring for were stymied by the Indian Child Welfare Act (ICWA). ICWA was passed in the 1970s with the good intention of keeping Native American families together, but in reality, it has meant that many Indian children’s best interests are superseded in custody cases. Paxton explains the action that is being taken in order to end the ICWA injustice:
Along with the Brackeens, I joined the attorneys general of Louisiana and Indiana in suing to strike down this discriminatory law. A federal court in October sided with us. Among other findings, the judge held that the ICWA discriminates based on race in violation of equal protection and commandeers state governments in violation of the 10th Amendment. A basic principle of federalism holds that federal law cannot commandeer state governments; doing so is even less justifiable when the federal requirement is itself illegal and discriminatory. The defendants, including the Interior Department and several tribes, are appealing the ruling.
Knowing the many hoops they would have to jump through even to get in the door — as well as the looming threat of separation if they somehow manage to complete the adoption of a Native American child — many couples who want to adopt simply turn elsewhere. The tragic result is that countless Native American children are prevented from joining a family committed to their well-being.
Compensating for injustice against Native American peoples in the past cannot justify mistreating their children in the present.
The Goldwater Institute has long fought this federal law that subjects Native American children to a separate and substandard set of rules regarding their custody cases, including filing a friend-of-the-brief court in Texas federal court in the Brackeens’ case.
You can read more about the Institute’s ICWA work here.