Federal Lawsuit Over Foster Child Could Impact Native American Law

A Dallas couple, in their attempt to adopt a Native American foster child, began a court battle involving the Indian Child Welfare Act (ICWA).

Chad and Jennifer Brackeen had been foster parents for more than a year when they filed a petition to adopt a little boy (he is known as A.L.M in court documents). Despite the support of A.L.M’s court-appointed lawyer and his birth parents, a state family court denied the Brackeen’s petition. According to the court, the reason was that A.L.M. was Native American.

ICWA, passed in 1979, put in place standards that states must follow when a Native American child needs a new home. The law promotes keeping children like A.L.M within Native American communities whenever possible. It is an attempt to correct American policies that forced the assimilation of Native American children into white culture by taking them off reservations.

The state court’s ruling in this case, guided by ICWA, would send A.L.M. to an unrelated Navajo family that he had only met once. The Brackeens made the decision to sue the U.S. Department of the Interior’s Bureau of Indian Affairs, arguing that ICWA does not necessarily make the best interest of the child the primary concern.

In October, a Texas judge found for the Brackeens, with part of his ruling stating that ICWA distinguishes between Native Americans and others on race, not political sovereignty. There must be a higher level of scrutiny when a law operates on a racial classification, and the judge found that the law did not pass the level of scrutiny that was needed.

Though the case is still ongoing, A.L.M. remained in the Brackeens’ care and the adoption was finalized in early 2018.

The Fifth Circuit Court of Appeals is scheduled to hear oral arguments for the case in March. It could go as far as the Supreme Court.

Additional Resources

A Court Battle Over a Dallas Toddler Could Decide the Future of Native American Law, The Atlantic, February 21, 2019

View the Docket Report — Brackeen et al v. Zinke et alĀ 

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