The Supreme Court ruled today to uphold the Indian Child Welfare Act, which requires state adoption agencies to place Native American children with relatives or families of the same tribe whenever possible. Learn more about the act in this story from 2021.
In fact, numerous states have enacted child welfare laws for non-Native children that mirror the protections in ICWA, wrote Zug in a law review. If the law were eliminated, Native adoptees ironically might be easier to remove from their families than other children who are granted ICWA-like protections by state law.
"ICWA cases move in an alternate reality, divorced from science. In all other areas of child custody law, lawyers and judges adopt the principle that a child’s attachments to caregivers should not be severed except for the most compelling reasons," Fiddler said. In Fort’s telling, cases like the ones Fiddler describes result not from the Indian Child Welfare Act but from improper applications of the law and a "fundamentally broken foster care system."
The Brackeens won in state court, eventually adopting the boy. The federal lawsuit, however, has slowly worked its way up through the legal system, receiving a range of contradictory rulings. The federal government and the tribes quickly appealed the case to the Fifth Circuit Court of Appeals, where a panel of 16 judges reviewed O’Connor’s decision. On April 6, 2021, the judges published a 325-page ruling thatThe most significant aspect of the Fifth Circuit decision was a ruling that portions of ICWA had "commandeered" state adoption proceedings in violation of the 10th Amendment, which establishes which powers belong to federal vs. state governments.
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