Posted: August 6th, 2022

The Indian Child Welfare Act (ICWA) of 1978:

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The Indian Child Welfare Act (ICWA) of 1978:
History of the ICWA
Congress identified a disturbingly high percentage of Indian families being broken by unjustifiable removal of their children by the non-tribal entities in 1978. These unwarranted removals would lead to many children being placed in non-Indian families or adoptive homes (Schwartz, 2). Therefore, the ICWA was implemented to protect and preserve the Indian tribes specifically protecting their children as a fundamental element of the continued existence of the tribe. The ICWA was designed to set the standards for the placement of Indian children in foster or adoptive families and help tribes set up their child and family programs. Over forty years, numerous lawsuits were filed to challenge the ICWA including on the basis that the statute impossibly gave the Indian children different treatment that was based on race (Schwartz, 2). Nonetheless, these lawsuits were not successful until the Brackeen case.
The Constitutionality of the ICWA
In the case of Brackeen v. Zinke, Judge O’Connor indicated that the CWA was unconstitutional in its entirety when one considers the Equal Protection Clause and the Fourteenth Amendment (Sciamanna). The judge states that the radical classification of children in the ICWA has not demonstrated to serve any urgent government interest. The law covered any child that is either a member to a federally recognized tribe which is the Alaska Native Village or one that is eligible for membership in the federally recognized tribe or Alaska Native village and should be the biological child of the member to a federally recognized tribe or the Alaska Native Village (Sciamanna). Therefore, the ICWA was considered to be giving the native American preferential treatment as it was based in trace and it was violating the equal protection guarantee provided by the Fifth Amendment and also the federal guaranteed specifically the anti-commandeering principle provided in the Tenth Commandment.
The Judge was correct in giving this ruling considering that the ICWA was stripping away basic constitutional rights from the children that are racially classified as Indian. While the ICWA was implemented for predetermined objectives, its applications in the present day have harmed the administration adoption process in foster families (Shapiro). The cases of Re Bridget and Re Santos focussed on equal protection for the children where the courts stated while the law was protecting the interests of the tribes through the children and ensuring a preservation of the tribal culture (Newman and Rob). This compelling government interest has served no purposes in applying for the children of Native American descent whose parents are entirely assimilated Indian.to this affect the compelling interests of the federal government does not exceed the child’s fundamental rights to having a permanent home which is being at a foster or pre-adoptive placement.
Also, the courts indicated that absent relationships socially, culturally and politically or where there is extensive attenuation of relationships, the only underlying principle for the ICWA is the generic heritage of the child instead of the state law in dependency proceedings (Newman and Rob). Therefore, it is evident the the ICWA comprises an undesirable discrimination based in race. It is also suspect that the decisions are untethered from the ICWA text but rather being determined that the parent is insufficiently connected to their respective tribe or respective culture that isn’t determined by the state court without considering the familiarity of the distinctive political, cultural and familial traditions of the tribe (Newman and Rob).
Furthermore, the Native American parents, relatives, or affiliated tribes that have no contention with the adoption but will have the process delayed under the arbitrary administrative rules. At times, the child is removed from the stable adoptive parents to be placed in a neglectful abusive situation. Considering the Fifth Circuit, it also created a dangerous new precedent that eliminated the distinction between the classifications based on race and political affiliation. The implementation of the ICWA meant the political classification of Chile was defined based only on their race (Shapiro). The logic ignored the child’s cultural and political identification while using race to make fundamental decisions. Moreover, the biological eligibility for a child to be a member of a tribe is a form of classification based on national-origin which should be subject to the scrutiny that is applied in classifications based on race in other contexts.
Conclusion
The impact of the law is determined unconstitutional is that the tribes lose the rights and protections in the adoption and placement of Native American children (Zhou). This will allow the families to be in better control of how their children are adopted and protected while maintaining the basic constitutional rights granted to them which were denied by the ICWA.

Works Cited
Newman, Claire, and Rob R. Smith. “New Indian Child Welfare Act Challenges On The Horizon.” JD Supra, www.jdsupra.com/legalnews/new-indian-child-welfare-act-challenges-35811/.
Sciamanna, John. “District Court Ruling Threatens ICWA.” CWLA – Child Welfare League of America, 2020, www.cwla.org/district-court-ruling-threatens-icwa/.
Shapiro, Ilya. “Indian Child Welfare Act Creates Unconstitutional Race-Based Classifications That Hurt Kids.” Cato Institute, 11 Oct. 2019, www.cato.org/blog/indian-child-welfare-act-creates-unconstitutional-race-based-classifications-hurt-kids.
Shwartz, Mainon. “Is the Indian Child Welfare Act Constitutional?”, 2019, https://fas.org/sgp/crs/misc/LSB10245.pdf
Zhou, Janice. “Potential Changes to the Indian Child Welfare Act.” Best Lawyers® – Purely Peer Review™, 23 Mar. 2020, www.bestlawyers.com/article/indian-child-welfare-act/2870.

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