A law governing adoptions of American Indian children, designed to keep them within American Indian families, has been struck down as unconstitutional by a federal judge in Texas.
In an Oct. 4 ruling that has stunned Indian-rights advocates, U.S. District Judge Reed O’Connor found that the Indian Child Welfare Act of 1978 illegally gives American Indian families preferential treatment in adoption proceedings for Indian children based on race, in violation of the Fifth Amendment’s equal protection guarantee.
Additionally, O’Connor ruled that the law violated the Tenth Amendment’s federalism guarantees, specifically the so-called anti-commandeering principle established by the Supreme Court most recently in a 2018 sports gambling case, Murphy
v. NCAA et al, which bars Congress from “commanding” states to modify their laws.
The ruling is a victory in the eyes of state attorneys general in Texas, Louisiana and Indiana, who argued the Indian Child Welfare Act imposed a “discriminatory framework” against nonnative adoptive parents.
But Indian-rights attorneys said the ruling may not jeopardize only Indian children, who are far more susceptible to being removed from their families than non-native children, data have shown.
The case at issue stems from a Texas couple’s efforts to adopt an American Indian baby whose biological parents are from the Cherokee and Navajo tribes. The couple, Chad and Jennifer Brackeen, fostered the baby from the time he was 10 months old until he was 2. At that time the Brackeens sought to adopt him with the support of the baby’s biological parents.
But a family court in Texas blocked the adoption on the grounds of the Indian Child Welfare Act. The law does not bar non-Native American families from adopting or fostering American Indian children outright but requires them to show “good cause” that the child can’t or shouldn’t be adopted by other American Indians.