Story at a glance

  • The Fifth Circuit Court of Appeals is taking a second look at the 1978 Indian Child Welfare Act to determine its constitutionality.
  • A number of states and individuals looking to adopt Native American children say the “race-based” statute violates the 10th Amendment.
  • Meanwhile, Native American tribes argue it remains necessary to ensure children have the best chance of staying within their communities.

The Fifth Circuit Court of Appeals is weighing the future of the Indian Child Welfare Act (ICWA), leaving the fate of Native American children — and their legal cases of abuse, neglect and adoption — hanging in the balance. 

In 2018, a federal district court ruled that the ICWA was unconstitutional; in 2019, a three-judge panel of the Fifth Circuit partially reversed that decision. 

“We are confident the full Fifth Circuit Court of Appeals will again confirm the constitutionality of the Indian Child Welfare Act,” John Echohawk, Executive Director of the Native American Rights Fund, said in a release. “We will always stand with our children, families, and tribes against any and all efforts to diminish our communities, well-being, and sovereignty.”

When President Jimmy Carter enacted the law in 1978, 25 to 35 percent of Native American children were being separated from their families by state child welfare and private adoption agencies. Placed in foster care, 85 percent of these children were relocated from their communities, even in cases where other relatives were able and willing to house them. 

The act gave tribal governments exclusive jurisdiction over children living on reservations as well as some jurisdiction over Native American children in foster care outside of reservations. 

Texas Attorney General Ken Paxton said in a 2019 release, “Knowing the difficulties that await them if they attempt to adopt a Native child, many couples simply turn elsewhere at the outset. The tragic result is that Native children are deprived of loving families committed to their well-being. The federal government has no right to impose its illegal and discriminatory requirements on states. This separate and unequal system must go.”

Five different tribes are in Louisiana to defend the act, in addition to 486 federally recognized Indian tribes listed in an amicus brief defending the law. 

“Many states continue to have vastly disproportionate rates of Indian children in out-of-home placements compared to the general child population,” said the brief, arguing that the ICWA remains necessary.  

The hearing on Jan. 22 comes nearly a year after the first round of arguments in Brackeen v. Bernhardt (formerly Zinke), which was filed by the states of Texas, Indiana and Louisiana, as well as seven individuals seeking to adopt Indian children. The lawsuit argues that the statute violates the 10th Amendment, which reserves powers not delegated to the federal government by the Constitution to the states. 

“The federal government simply lacks authority to command that state governments treat people differently based on their genetics,” the suit reads, arguing that the ICWA discriminates based on race. 

However, Judge James L. Dennis said in 2019’s opinion that the act goes beyond just race to define Native American children. Under the law, Native American identity also “extends to children without Indian blood, such as the descendants of former slaves of tribes who became members after they were freed, or the descendants of adopted white persons,” he wrote. 

The Circuit Court reconsiders cases of broad legal significance such as this one in an "en banc" review, which it is currently undergoing.

"The special treatment ICWA affords Indian children is rationally tied to Congress's fulfillment of its unique obligation toward Indian nations and its stated purpose of 'protecting the best interests of Indian children and promoting the stability and security of Indian tribes,'" the Fifth Circuit said in their August 2019 decision

Published on Jan 22, 2020