What Remains: Indian Child Welfare Act Under Fire

A federal judge has declared unconstitutional a 40-year-old law that was passed to protect against the separation of American Indian children from their families and tribes by state-run child welfare systems. The act aimed to counter the separation of Native American children and encourage fostering and adoptions within Native extended families and tribes. The rationale behind this law is that research shows children, Native and non-Native alike, have better outcomes when they are raised with family, extended family or in their community over state child welfare systems and foster homes. For many, the ICWA is the gold standard for child welfare. But now a federal judge has ruled the landmark legislation unconstitutional, begging the question, what remains?

There is no time like the present to become part of this relevant dialogue and other panel conversations during the full-day Indian Law Conference on November 2, 2018 in Washington, D.C. Secure your spot and register for the conference today at www.fedbar.org/dcil18.

U.S. District Court Judge Reed O’Connor recently sided with Texas, Louisiana, and Indiana in Chad Brackeen v. Ryan Zinke, a case involving three Native American children whose non-Native foster parents tried to adopt. Chad and Jennifer Brackeen sued for the right to adopt an American Indian child. A state court denied their petition as ICWA gave preference for the child to be adopted by a family member, other member of the child’s tribe, or other Native American families.  The couple then sought to have the federal law declared unconstitutional.

In Brackeen v. Zinke, U.S. District Judge Reed O’Connor declared the ICWA is a “race based statute” that violates the Equal Protection Clause of the constitution. In the decision, Judge O’Connor also argued that ICWA violates the 10th amendment by “commandeering” state courts to enforce a federal law.

“Because two of the three preferences have no connection to a child’s tribal membership, this blanket classification of Indian children is not narrowly tailored to a compelling governmental interest and thus fails to survive strict scrutiny review,” Judge O’Connor wrote.

Judge O’Connor’s decision to strike down the ICWA continues to draw strong reactions across the nation. Will the tribal defendants seek an immediate stay of the ruling and appeal O’Connor’s decision? Will the dispute wind up before the U.S. Supreme Court,  whose last ICWA case went against tribal interests?

Though ICWA has been contested in court myriad times since its passage in 1978, this is the first time that a federal judge has put the future of the law in jeopardy.  Join the FBA Indian Law Section for their 20th Annual D.C. Indian Law Conference on November 2, 2018 in our nation’s capital at the FHI 360 Conference Center to hear about this topic from respected practitioners from varying perspectives. The Federal Bar Association’s D.C. Indian Law Conference is an ideal opportunity to discuss the nuances of the Zinke decision, which has brought the ICWA into question. Please join us for “ICWA After Texas v. Zinke – Where Does Indian Country Go From Here.” Panelists include Ambassador (ret.) Keith Harper, Partner, Kilpatrick Townsend and Shannon Keller O’Loughlin, Executive Director, Association on American Indian Affairs.  Register today at www.fedbar.org/dcil18.

Stacy Slotnick, Esq. holds a J.D., cum laude, from Touro Law Center and a B.A., summa cum laude, from the University of Massachusetts Amherst. She performs a broad range of duties as an entertainment lawyer, including drafting and negotiating contracts; addressing and litigating trademark, copyright, patent, and other IP issues; and directing the strategy and implementation of public relations, blogging, and social media campaigns.