As part of the ongoing challenge against the Indian Child Welfare Act, a federal appeals court has agreed to rehear a lawsuit filed by adoptive parents claiming ICWA discriminates on the basis of race and infringes on state rights.
The adoptive couple, Chad and Jennifer Brackeen, first sued the U.S. Interior Department in 2017. After fostering a Native American toddler for more than a year, their petition to adopt that toddler was challenged in court, due to ICWA, when a nonrelative Native American family expressed willingness to adopt the boy. Eventually, the placement fell through, but the Brackeens took their case to court to express their belief that ICWA unlawfully “elevates a child’s race over their best interest.”
Their case led to ICWA being briefly ruled mostly unconstitutional, but a circuit court overruled that judge’s opinion in August of this year. However, news this week that the 5th Circuit will rehear the case “en banc” means the challenge is not yet over.
ICWA was initially passed in 1978 as a response to the separation of American Indian and Alaska Native children and parents. Studies showed that 25 to 35 percent of all native children were removed from their homes, with 85 percent of those children placed in homes outside their families or tribes. Since then, ICWA has faced challenges, one of which was reviewed by the U.S. Supreme Court in 2013.