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Fifth Circuit Considers Legality of The Indian Child Welfare Act

The Collin County Law Group March 18, 2019

ve American children were taken from their families and sent to boarding schools hundreds of miles away. This was often done forcibly, and the children were harshly punished for following the language or practices of their tribes. This was done, in large part, to intentionally destroy native cultures and communities and assimilate Native children into white culture.

Even in the 1970s, there was “an alarmingly high percentage of Indian families [being] broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies.” The child welfare system had essentially taken over the job of breaking up native families.

Research at the time found that about a third of Native American kids were being removed from their homes by state and federal agencies. These kids were mostly placed with white or other non-Native American families. The reasons may have been more or less innocent, but the result was children continuing to be torn from their Native beliefs, languages and cultural practices.

Therefore, when the act was passed, it was considered a critical lifeline to maintaining Native American culture. The act requires foster care and adoption agencies to give preference to Native American families — extended family or members of the same community — rather than placing Native American children with the first available family.

Is the Indian Child Welfare Act Racist?

Last year, a federal judge in Texas ruled that the Indian Child Welfare Act was merely a race-based policy that violates the Equal Protection clause in the U.S. Constitution.

Hundreds of tribes from over 20 states, along with advocacy groups and the federal agency overseeing Indian Affairs are involved in an appeal of that ruling. They argue that the Indian Child Welfare Act is essential to maintain children’s membership in the community of their tribes.

“The fear is without the statute, Indian children will once again sort of disappear into the child welfare system and be lost to their families and their tribes,” said an attorney representing five tribes in the lawsuit.

There have been real problems with the administration of the act. Several people have challenged the legality of the act after being denied the chance to adopt their foster children simply because a Native American family became available.

That said, it’s not clear that bad administration makes the act unconstitutional or merely a race-based policy. Do you think the Indian Child Welfare Act is necessary to preserve Native American culture or an unconstitutional attempt to base a law on race alone?