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Judge Strikes Indian Child Welfare Act

By William Vogeler, Esq. on October 15, 2018 | Last updated on March 21, 2019

Judge Reed Charles O'Connor, a federal judge in Texas, is not afraid of Indians.

Staring down centuries of Native American sovereignty, the judge stuck down the Indian Child Welfare Act. He said the 40-year-old legislation that favors tribal rights in adoption proceedings is unconstitutional.

Native American advocates were stunned by the decision. There will be an appeal.

Adoption Rights

The case started a year ago when a non-Native American couple sued for the right to adopt a Navajo-Cherokee toddler they had fostered for more than a year.

Under ICWA, courts must give Native Americans priority over non-Native Americans in adoptions of Native American children. The law was designed to preserve Native American tribes.

But O'Connor said the law "offends the structure of the Constitution." According to reports, the judge said it violated the Fifth Amendment.

Attorneys general in Texas, Louisiana, and Indiana said ICWA imposed a "discriminatory framework." Tribal attorneys, however, said the ruling was unprecedented.

"Jarring" Decision

Dan Lewerenz and Derin Dougherty Lynch, lawyers with the Native American Rights Fund, said the decision was "jarring."

"It introduces perhaps an entirely new world of Indian law," Lewerenz told the Washington Post. "And we worry that this might be what the plaintiffs intend, that this is not just an effort to undermine ICWA, but to undermine all Indian law."

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