Infant Adoption

In October, 2018, the United States District Court for the Northern District of Texas, in Brackeen v. Zinke, held that the Indian Child Welfare Act (“ICWA”) and the Bureau of Indian Affairs regulations implementing it violate the U.S. Constitution, largely on equal protection and 10th Amendment grounds. The United States Court of Appeals for the Fifth Circuit has stayed that ruling pending appeal. Oral arguments are scheduled for March.

Given the high profile of this case, it has attracted significant media attention. Recognizing the controversy the Texas decision has created, the Academy of Adoption and Assisted Reproduction Attorneys (“AAAA”) trustees carefully considered the issues, particularly the best interests of children, and has taken a position supporting the plaintiffs in that litigation.

Importantly, AAAA has taken positions in the past that supported a best interests application of equal protection principles to Indian children. In Adoptive Couple v. Baby Girl, the Academy supported the rights of the birth mother to make a placement decision over the efforts of the father of the child to disrupt the adoption. The father asserted his rights based solely on race, but he had abandoned the child under South Carolina law. In Lexi P,  AAAA an amicus brief asking the United States Supreme Court to accept certiorari and hold that equal protection requires Indian children have the right to have their best interests heard on the same terms as other children. AAAA has supported arguments in other cases involving Indian children where it was believed the ICWA was being applied in a manner inconsistent with the best interests of children.

A few years ago, when commenting on the proposed BIA regulations AAAA opposed the proposed regulations, supported the application of equal protection to Indian children, and made many arguments based on the best interests of Indian children. AAAA also argued, as decided by the federal court in Brackeen, that the BIA lacked authority to adopt the proposed regulations due to 10th Amendment and other concerns. Those efforts were successful in persuading BIA to adopt regulations that are a less dramatic departure from the language of the ICWA than were proposed.

The Texas decision, therefore, is consistent with prior positions adopted by AAAA concerning the ICWA. AAAA also supports that decision, primarily because the ICWA is not working as it is presently enacted.

The ICWA was enacted to help reduce out of home placements of American Indian children. The overrepresentation of American Indian children in foster care, however, has not changed or improved, and American Indian children are disproportionately represented in the foster care systems of states where there is a higher population of American Indian children.

While AAAA supports the Texas decision, it has always supported and continues to support the goals for which ICWA was adopted. The ICWA, however, is not meeting those goals and often is applied inconsistent with the best interests of the children involved. AAAA would welcome the opportunity for a seat at the table to discuss how the goals of the ICWA may better be achieved through other means.

— Larry Jenkins is a Fellow of the Academy of Adoption and Assisted Reproduction Attorneys.