This week, US District Judge Reed O’Connor ruled the Indian Child Welfare Act (ICWA) unconstitutional in the case of Brackeen v. Zinke, where a non-Native American couple sued for the right to circumvent ICWA’s placement preferences and adopt a Native American toddler they were fostering. By focusing on race rather than a child’s citizenship in a tribal nation, Judge O’Connor’s decision threatens a 40-year-old law that protects Native American tribes’ sovereignty to make decisions about the children in their tribe. Though limited in scope and not applicable across the nation, Judge O’Connor’s decision is deeply troubling. It ignores the most fundamental principles of child welfare law, decades of federal court precedent, and centuries-old treaties.
As an organization dedicated to children’s best interests, the North American Council on Adoptable Children (NACAC) joins the National Indian Child Welfare Association, many tribal organizations, and the Child Welfare League of America in opposing this decision and affirming the importance of ICWA in protecting the best interests of Native American children. We echo the joint statement of the Cherokee Nation, Morongo Band of Mission Indians, Oneida Nation, and Quinault Indian Nation as they firmly state: “If ICWA is struck down in whole or in part, the victims will be our children and our families—Native Children and Native Families.”
For more than 100 years, state-run child welfare systems forcibly removed Native American children from their families and tribes and placed them in boarding schools and non-Native foster and adoptive homes. By 1978, when ICWA became law, about one-third of all Native children were removed from their homes by state child welfare and private adoption agencies and were often placed outside their communities even when relatives were willing and able to care for them. Congress passed ICWA to respond to this injustice and the harm it did to Native children, affirm tribes as sovereign nations, and acknowledge they have government-to-government relationships with state agencies.
At ICWA’s core is a focus on keeping families together and placing children with relatives in their communities—a central facet of good child welfare practice. In fact, the law has been called the gold standard in child welfare practice by 18 national child advocacy organizations. This is reiterated by the US Department of Interior’s response to Judge O’Connor’s ruling: “For nearly forty years, child advocacy organizations across the United States have considered the Indian Child Welfare Act to be the gold standard of child welfare policy. The Department of Interior strongly opposes any diminishment of ICWA’s protections for Indian children, families, and tribes. The Department will continue to work with tribes and states to implement ICWA moving forward. We reiterate our support for ICWA’s goals of ensuring the safety of Indian children, maintaining Indian families, and promoting tribal sovereignty.”
Since our founding, we at NACAC have fought for laws that allow a child to grow and develop in a safe, loving family. Our decades of experience have repeatedly shown that keeping children in their families and their communities helps ensure positive outcomes for children. We support ICWA and its role in promoting children’s best interests.
If, as expected, appeals take this case to the higher courts, NACAC calls upon other judges and justices to fight to maintain tribal sovereignty and to allow tribes to keep Native children in their families and communities.