Wellfair Act

Will the Indian Child Welfare Act Survive In Its Current Form

Has the Indian Child Welfare Act (ICWA) made it harder to remove Native American children from abusive homes?  That exact issue is now pending before the United States Supreme Court when next month the Court will hear the case of Haaland v. Brackeen, in which the Supreme Court will consider whether the ICWA discriminates on the basis of race and whether the law exceeds Congress’s powers by commandeering state courts and agencies to carry out a federal child-placement program. 

In this important case, the states of TexasLouisiana, and Indiana, as well as individual plaintiffs, are seeking to declare the ICWA unconstitutional. This matter was originally taken up in a Texas District Court on an adoption petition filed by the Brackeen family after their initial efforts to adopt a Native American child were challenged by the Navajo Tribe.  As a matter of utmost importance, the Cherokee NationOneida NationQuinault Indian Nation, and Morongo Band of Mission Indians all intervened in the case in an effort to preserve the ICWA in its current form. 

In the first strike against the ICWA, earlier this year the U.S. District Court in Texas declared that the ICWA was unconstitutional, and later, before a whole panel of judges, the Fifth Circuit Court of Appeals held parts of the law, including those that set federal standards for lower and state courts, were constitutional, while finding that the parts of the law that required state agencies to perform certain acts were unconstitutional as a violation of the Tenth Amendment, which details that those powers not delegated to the federal government by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.  

To understand where we are presently, it’s important to know a little about the history of the ICWA.  First enacted in 1978, Congress passed the Indian Child Welfare Act with the underlying, noble purpose of trying to keep Native American families intact.  Congress felt forced to intervene as a response to thousands of Native American children being removed from their families and placed into non-Native American homes, displacing Native American children from their cultural and historical communities and customs.  The Act’s stated goal remains to strengthen and safeguard tribal nations for future generations by ensuring Native American children remain in indigenous homes for the stabilization and continuation of the Native American family.  But, as the current lawsuit questions, at what cost to Native-American children?

Native American

The States leading this lawsuit argue that the ICWA is responsible for a separate and unequal child welfare system that applies different legal standards for Native American children than it does for non-Native American children. For example, in most states, including in Florida, when non-Native American children are permanently separated from abusive parents using a “termination of parental rights” (TPR) proceeding, the State has to find “clear and convincing evidence” to proceed and terminate parental rights.  However, under the ICWA, when there are allegations that Native American children have been abused, abandoned, or neglected, the ICWA dictates that the State must prove its case beyond a reasonable doubt and that it must do so with expert witness testimony.  In practice, this represents a substantially higher legal standard that makes it more burdensome to prove such abuse than it does for cases involving abused non-Native American children, thus making it that much more difficult to remove Native American children from abusive homes.  As many have noted, the ICWA’s standards of proof present an even higher legal standard those that apply in criminal cases, and may represent one of the highest legal standards and burden of proofs in American jurisprudence.    

In addition to the higher legal standards used for Native-American children under the ICWA, the States are also arguing that the Federal Government is without constitutional authority to implement a law such as the ICWA, as those specific powers were not granted to the Federal Government in the U.S. Constitution. It will be interesting to follow this case as the U.S. Supreme Court hears oral arguments in less than one month.  With the Court taking a fresh look at these provisions, I would like to think that the Court will consider the arguments presented in an effort to ensure that Native-American children are not put at even more risk by a law whose intended purpose was to protect them and their heritage.  

Attorney Russell J. Frank is a Board Certified Family and Marital Law Attorney at CPLS. P.A. focuses his practice areas on family and marital law and dependency law.  Contact Attorney Frank today to discuss any family or marital legal issues you may be experiencing at rfrank@cplspa.com

Russell Frank

Russell Frank

Family Law Attorney


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