5th Circuit Hears Native American Adoption Law Case

By William Vogeler, Esq. on March 15, 2019 | Last updated on March 21, 2019

Non-Indians think they know better than Indians what is best for Native American children, said lawyers for the Navajo Nation in arguments before a federal appeals court.

It's a bold argument, but goes to the heart of the case in Brackeen v. Bernhardt. Under the Indian Child Welfare Act, Indian tribes have priority over non-Indians in Native American adoptions.

Last year in Texas, a trial judge struck down the Act. Now the tribes are defending ICWA in the U.S. Fifth Circuit Court of Appeals.


The case started after Chad and Jennifer Brackeen fostered a baby, and then petitioned to adopt the boy when his natural parents voluntarily terminated their parental rights. The Navajo Nation intervened.

The child had Navajo blood, so the tribe identified a Navajo family to adopt him under ICWA. The Brackeens then sued in federal court for an emergency stay.

In a stunning decision, the trial judge held that ICWA was unconstitutional. It was stunning because Native Americans have exercised their rights under the law for more than 40 years.

"Plaintiffs talk a good game about the 'best interests' of Indian children, paternalistically contending that they know better than Indian families and tribes what is best for their children," said attorneys representing four Indian groups in the appeal.

Racially Motivated

The Brackeens and their supporters contend that ICWA is racially motivated and discriminatory. They say it breaks up families who provide good homes for Indian children.

Since the law was enacted in 1978, many Native American children have been taken from adopting homes and placed on Indian reservations. In one high-profile case, a young girl was photographed being carried out of her foster home to another state.

In the meantime, the Brackeen family was able to adopt their Indian boy last year. He is three now, and the couple want to adopt his sibling sister, too.

Having heard the arguments, the Fifth Circuit will decide what happens to them next.

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