On October 4, 2018, United States District Judge Reed O’Connor declared that several provisions of the Indian Child Welfare Act (ICWA) are unconstitutional. One provision deemed to be unconstitutional ensures that “in any adoptive placement of an Indian child under State law, a preference shall be given, in the absence of good cause to the contrary, to a place with: (1) a member of the child’s extended family;(2) other members of the Indian child’s tribe; or (3) other Indian families.” 25 U.S.C.S. § 1915. This battle began a year ago when Texas, Indiana, Louisiana, and several individuals filed suit requesting that courts declare named sections of the ICWA to be unconstitutional. Several tribes including the Cherokee Nation, Oneida Nation, and Quinalt Nation, responded to this suit. In the aftermath of Judge O’Connor’s determination, the same tribes are requesting a stay that would delay the implementation of his ruling until an appeal is heard.
How did we get to this point? According to congressional findings at the time of the ICWA’s passage in 1978 an “alarmingly high” percentage of Indian families were disrupted by the “often unwarranted” removal of children by nontribal entities. 25 U.S.C.S. § 1901. At the time some studies listed the number of Indian children removed from their families as 25%-35%. Congress further noted that States often “fail to recognize the essential tribal relations of Indian people and cultural and social standards prevailing in Indian communities and families.” 25 U.S.C.S. § 1901. Fast forward forty years to the present day and states are claiming that the child custody provisions of ICWA offer Native Americans preferential treatment and violate the due process clause of the United States Constitution.
How could this affect Native-American children in Texas? In response to this ruling several Indian Nations submitted a brief to the Court essentially requesting a pause on implementation of repeal until an appeal is heard. In their brief they reported potentially devastating consequences. Among these consequences were the loss of statutory rights in state proceedings. This could mean that Indian parents no longer receive notice before parental-rights termination proceedings are initiated, they may also lose their right to challenge child placement in these proceedings. Ultimately, the Nations assert that the same problems that Congress intended to solve by enacting ICWA would be exasperated by its repeal.