In 1978, Congress passed the Indian Child Welfare Act. Before the law, a vast majority of Native American children in foster care were placed in homes outside of native communities. The law was meant to correct that, and it mandated that Native American families have priority in adopting Native American children.
But now, over 40 years later, that law could change. A non-Native American family from Fort Worth is battling in the courts for custody of a child whose birth mother is Navajo and birth father is Cherokee. If they are granted custody, the decisions could have implications for how the Indian Child Welfare Act, known as ICWA, is used in future lawsuits, and possibly for other laws that provide race-based protections.
Jan Hoffman has reported on this story for The New York Times, and says the family suing for custody, the Brackeens, argues that the law is unconstitutional because it’s based on race. But Hoffman says it’s unclear whether that’s true.
“Tribes say no, it’s not based on race,” Hoffman says. “Child welfare advocates and their feelings about it [are]: They actually believe that ICWA is a gold standard for how custody proceedings for children in foster care should unfold.”
Hoffman says based on what she’s learned through her reporting, being a member of a Native American tribe is not a racial designation but a political one.
“If you look at what it means to be a citizen or member of any of the 573 federally-recognized tribes in the United States, each tribe has different requirements,” Hoffman says. “That’s somewhat analogous to being a citizen, say, of France, or even the United States.”
More than that, she says the tribes are sovereign nations – a status validated by centuries of treaties and laws.
Right now, the Brackeens in Texas, plus the states of Indiana and Louisiana, are challenging ICWA in federal court. The Fifth Circuit Court of Appeals in New Orleans is determining whether to uphold Texas District Judge Reed O’Connor’s ruling that ICWA is unconstitutional. But the case will likely end up in the Supreme Court regardless of what that court decides.
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Written by Caroline Covington.