Federal Judge Declares Indian Child Welfare Act Unconstitutional

Oct 8, 2018
Originally published on October 9, 2018 4:30 pm

A Texas federal judge just has declared unconstitutional a decades-old law that aims to keep Native American children within their own communities.

As late as 1978, the government was forcibly removing nearly a third of all Native American children from their families and tribes and placing them in state welfare systems.

So Congress passed the Indian Child Welfare Act. The law gives first adoption preferences to a Native child’s family, tribe or the broader Indigenous community.

But last week, U.S. District Court Judge Reed O’Conner ruled the law provides race-based special treatment and is thus unconstitutional.

“We’ve never had a decision like this,” David Simmons, director of government affairs and advocacy for the National Indian Child Welfare Association, said.

Simmons was surprised by the ruling and said it ignores decades of legal precedents and tribal sovereignty. He said it’s unclear whether the Indian Child Welfare Act is now null and void.

“This decision provides such uncertainty to native children and families who are already in state child welfare systems,” he said. “What does this do to those families, what kind of danger does it place them in, what additional trauma will they have to receive?”

The decision was prompted by a lawsuit filed on behalf of foster parents by the states of Texas, Alabama and Louisiana.

Last year, a Texas couple tried to adopt a native toddler they were fostering.

But provisions within the Indian Child Welfare Act required the government place that child with an Indigenous family instead.

Four tribes released a press statement stating they would appeal O’Conner’s decision. If the ruling is upheld by the U.S. Fifth District Court of Appeals, the case could end up in the U.S. Supreme Court.

This story was produced by the Mountain West News Bureau, a collaboration between Wyoming Public Media, Boise State Public Radio in Idaho, Yellowstone Public Radio in Montana, KUER in Salt Lake City and KRCC and KUNC in Colorado.

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