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Native American Adoption Law Struck Down by Texas Federal Judge

By Lisa M. Schaffer, Esq. on October 12, 2018 | Last updated on February 06, 2023

Native Americans were dealt a severe blow by the federal court in Texas just days before Columbus Day. That court struck down the federal lndian Child Welfare Act (ICWA) of 1978, governing the adoption of Native America children, which was seen as the gold standard by 18 national child welfare organizations. The law was created to keep Native American children with tribes, to every extent possible, in order to secure Native American heritage and sovereignty. But now that law has been deemed unconstitutional.

ICWA Violates Equal Protection and Limits on Federalism

In adoption proceedings of Native American children, the ICWA states a specific priority for choosing adoptive parents:
  • First, to members of the adoptive child's immediate family
  • Second, to members of the adoptive child's tribe
  • Third, to any Native American person
  • Fourth, any fit non-Native American
In this case, a non-Native American family was trying to adopt a Native American toddler whose biological parents are from the Cherokee and Navajo tribes. They had fostered the child for over a year. U.S. District Judge Reed O'Connor held that the preferential treatment of ICWA was illegal based on race, in violation of the Fifth Amendment's equal protection guarantee. Judge O'Connor also ruled that to allow a federal law, such as ICWA, to supersede state adoption laws violates the Constitution's Tenth Amendment, which tempers the strength of federalism by barring Congress from "commanding" that states follow its laws.

Nixing ICWA Melts Native American Heritage

The main reason the ICWA came to be was because, at the time, Native American children were being taken from their families at a disproportionate rate than the rest of society. About 90% of the time, they were placed with non-Native American families. Back then, there had been an emphasis on assimilation, including land allotment and boarding schools. In the mid 1970s, the American climate turned to give Native Americans more rights and honor their indigenous culture. However, if Native American children are placed in non-Native American homes, the culture, heritage, and perhaps further down the road, rights unique to Native Americans may blend into the proverbial American Melting Pot. Indeed, Texas Attorney General Ken Paxton praised this ruling, claiming it "protects the best interests Texas children", clearly not viewing this child as Native American.

Native American: A Race or a Nation?

This is perhaps the first time that a law protecting the rights of Native Americans has been struck down for Equal Protection reasons, which means that the judge viewed this as a race issue, and not a political issue. This strikes fear in the heart of Native American advocates that their political power may soon be curtailed. According to Dan Lewerenz, attorneys for the Native American Rights Fund, "It introduces perhaps an entirely new world of Indian law. 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." In 1977, the US Supreme Court stated in U.S. v. Antelope that the reason Native Americans should be granted special treatment was "rooted in the unique status of Indian's as a 'separate people' with their own political institutions." But in ruling that Native Americans are a race, rather than a nation, it is quite possible that this could be the beginning of the end of Native American law. If you or someone you love feels their Native American rights have been violated, contact a local Native Peoples lawyer, who specializes in the unique legal arena surrounding your issues. You may have more rights than you think. Related Resources:
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