Court strikes down Native American adoption law

The landmark law governing adoptions of Native American children, designed to keep them within Native American families, has been struck down as unconstitutional by a federal judge in Texas.

In an Oct. 4 ruling that has stunned Native American rights advocates, US 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.

Additionally, O’Connor ruled that the law violated the 10th Amendment’s federalism guarantees, specifically the so-called ‘‘anti-commandeering’’ principle established by the Supreme Court most recently in a 2018 sports gambling case, Murphy v. NCAA et al, which bars Congress from ‘‘commanding’’ states to modify their laws.


In this case, O’Connor found that the ICWA ‘‘offends the structure of the Constitution,’’ since it requires state courts to implement a policy ‘‘unequivocally dictated’’ by the federal government.

The ruling is a victory in the eyes of state attorneys general in Texas, Louisiana, and Indiana, who argued the Indian Child Welfare Act imposed a ‘‘discriminatory framework’’ against nonnative adoptive parents. But in the eyes of Native American rights attorneys, the ruling is destructive, with an impact that may stretch far beyond the ICWA.

They fear it may not only jeopardize Native American children, who are far more susceptible to being removed from their families than non-native children, data has shown. They fear the ruling, if upheld, may also jeopardize decades of legal precedent affecting tribal sovereignty, said Dan Lewerenz and Erin Dougherty Lynch, attorneys with the Native American Rights Fund.