ICWA and Adoption
Last week, by a 7-2 vote, the Supreme Court upheld the Indian Child Welfare Act (ICWA)
History of ICWA
The ICWA (Indian Child Welfare Act) was passed in 1978 to protect against the forced removal of Native American children from their traditional homes. Congress had found, after testimony from several hearings, that as many as 35% of all Native children were being removed, usually forcibly, mostly from intact Native American families with extended family networks, and placed in predominantly non-Native homes, which had no relation to Native American cultures.
Minimum Standards for Removal
ICWA established minimum federal standards for removing Native children from their families and required state courts to notify tribes when an American Indian child is removed from their home outside of a reservation.
ICWA’s Framework for Foster and Adoption Placements
ICWA also implemented a framework for foster and adoption placements.
The framework requires first preference be given to a member of the child’s extended family, then other members of the tribe, and if neither of those is available, a home with a different tribal family.
What is an Indian Child?
“Indian child— means any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.” (25 USC 1903, subd. 4)
Who is a “Parent”?”
A ‘parent” means any biological parent or parents of an Indian child or any Indian person who has lawfully adopted an Indian child, including adoptions under tribal law or custom. It does not include the unwed father where paternity has not been acknowledged or established.”
(25 USC 1903, subd. 9)
ICWA Does NotDoes the Term “Parent” Include a Non-Indian Parent of an “Indian Child?”
Since the definition of “parent” includes both parents of an Indian child, if the child is an “Indian Child” as defined, then both parents are entitled to the protection of the ICWA, even if one parent is not an Indian.
Where Does ICWA Apply?
In 4 different types of proceedings
Foster care placements.
The ICWA applies to the temporary removal of an Indian child from his or her home, for placement in a foster home or institution, when the parent or Indian custodian (defined as an Indian person with custody of the child under tribal or state law or who has the child pursuant to a parental placement) cannot regain custody upon demand (25 U.S.C. 1903(1)). The latter provision exempts ICWA application from voluntary religious or school placements, as well as voluntary placements with private or public agencies where the parent or custodian can regain custody at any time. However, the ICWA would apply to a guardianship in which a child is placed with a non-parent, as this fits the definition of a foster care placement.
Termination of certain parental rights.
The ICWA applies to any proceeding that may result in the termination of the parental rights of the Indian child’s parents or the custodial rights of the child’s Indian custodian, including stepparent adoption proceedings and delinquency proceedings that lead to an attempt to terminate parental rights.
Pre-Adoption Placements and Adoption placements.
The ICWA applies to proceedings that lead up to and culminate in the adoption of an Indian child. It imposes an obligation on both public and private adoption agencies to comply with its provisions.
Apply to Divorce Proceedings
ICWA does NOT apply in divorce.
Recent Supreme Court Ruling
On June 15, 2023, in a 7-2 vote, in Haaland v. Brackeen, the Supreme Court affirmed the Fifth Circuit Court’s decision, upholding the ICWA in full.
Justice Amy Coney Barrett wrote the opinion for the Court, reaffirming the ICWA’s consistency with Congress’ authority per Article I of the U.S. Constitution.
Justices Clarence Thomas and Samuel Alito dissented on grounds that the ICWA infringed state sovereignty.
Underlying Case
In June 2016, Chad and Jennifer Brackeen fostered a 10-month-old Navajo boy. The boy’s Navajo mother (who lived in Texas) was found to be using drugs.
The father of the child is Cherokee.
In 2017 a Texas state court terminated the parental rights of both the biological parents.
Under the provisions of the ICWA, the Navajo Nation stepped in and sought to place the child with a Navajo family, but that failed and the Brackeens were allowed to adopt the child.
The Brackeens later attempted to adopt the boy’s sister in state court, but the girl’s extended family also sought to take in the girl.
The Brackeens then filed suit in federal court to overturn the ICWA on the grounds of racial discrimination.
Fifth Circuit on Appeal
On November 7, 2019, the Fifth Circuit, at the request of one of the judges, ordered that the case be heard en banc.
486 Indian tribes, 59 American Indian organizations, and 26 states filed amicus briefs in support of the constitutionality of the ICWA.
Is the ICWA constitutional?
The Supreme Court held yes, and upheld the ICWA.
ICWA Judicial Benchbook
The ICWA is very detailed and fraught with legal complications. Attached is the ICWA Judicial Benchbook which may help in your research.
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