Federal Court Ruling on the Indian Child Welfare Act

A Oct. 10 article in the Washington Post has reported that a landmark law governing the adoption of Native American children that was designed to keep them within Native American families has been struck down as unconstitutional by a federal judge in Texas. Says the article, “In an Oct. 4 ruling that has stunned Native American rights advocates, U.S. District Judge Reed O’Connor found that the Indian Child Welfare Act of 1978 illegally gives Native American families preferential treatment in adoption proceedings for Native American children based on race, in violation of the Fifth Amendment’s equal protection guarantee.”

A coalition of Native groups has condemned this ruling in the strongest terms: “This egregious decision ignores the direct federal government-to-government relationship and decades upon decades of precedent that have upheld tribal sovereignty and the rights of Indian children and families. Through 40 years of implementation, ICWA’s goal is to promote family stability and integrity. It continues to be the gold standard in child welfare policy. While this disturbing ruling is a pivotal moment for Indian Country, we vehemently reject any opinion that separates Native children from their families and will continue to fight to uphold ICWA and tribal sovereignty.”

Mennonite Sarah Augustine, co-founder of the Dismantling the Doctrine of Discovery Coalition and a Native woman, says that this ruling is akin to the courts overturning Brown vs. Board of Education for Native communities. “The U.S. government, during the 1800s, moved from a tactic of exterminating Native Peoples to assimilating them into U.S. society via boarding schools. The modern-day version of boarding schools is the foster care system. There are now more Indigenous kids in the foster system than there ever were in boarding schools. This hard-won legislation protected children from separation from their land, community, language and heritage. This is a major, shocking case of a civil rights violation. My own father was put in the foster care system at birth, separated from his people geographically and continuously throughout his childhood, and this has been the primary event of his life and my own life. Most Native people I know have a similar story.”

The Washington Post article said that the effects of this ruling may do more than jeopardize Native American children, who are “far more susceptible to being removed from their families than nonnative children.” Native American advocates “fear the ruling, if upheld, may also jeopardize decades of legal precedent affecting tribal sovereignty,” according to lawyers with the Native American Rights Fund.

The Dismantling the Doctrine of Discovery Coalition asks Mennonites to stand with the National Indian Child Welfare Association and Indigenous Peoples, the original Peoples of the land, in opposing this action.