Federal Appeals Court Upholds ICWA Constitutionality

A federal appeals court has overruled challenges to the Indian Child Welfare Act (ICWA), upholding the constitutionality of the 1978 law.

ICWA dictates that any child who has eligibility as a member of a federally recognized Native tribe cannot be adopted without first consulting the applicable tribe council. The law allows tribe leaders to object to the adoption placement outside of the tribe and find an appropriate guardian within the tribe, if available. It’s intended to preserve the political sovereignty of Native nations and protect a child’s connection to his or her Native culture, which adoption into a non-Native family can jeopardize.

The law came under attack in the fall of 2018, when a child’s non-Native adoptive parents challenged ICWA on the basis of race. A federal judge ruled ICWA unconstitutional, and the U.S. Justice Department appealed the case. The 5th U.S. Circuit Court of Appeals in New Orleans upheld the constitutionality of ICWA on August 9, reversing the lower court’s decision.

The court’s opinion recognized that Congress has broad power to regulate Native American tribes and that the act’s definition of “Indian child” is political, not racial.

“As Defendants explain, under some tribal membership laws, eligibility extends to children without Indian blood, such as the descendants of former slaves of tribes who became members after they were freed, or the descendants of adopted white persons,” Judge James L. Dennis wrote in the court opinion. “Accordingly, a child may fall under ICWA’s membership eligibility standard because his or her biological parent became a member of a tribe, despite not being racially Indian.”

For more information on the Indian Child Welfare Act, please visit the National Indian Child Welfare Association.

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