Can I adopt a Native American child in Texas?

 Posted on November 01, 2021 in Adoption

A Texas couple, who are not Native American, attempted to adopt a part-Cherokee and part-Navajo boy but were stopped by the Navajo Nation. After a years-long legal battle, the Navajo tribe withdrew its objection, and the couple was able to adopt the boy.

Native American tribes have the right to object to non-Native parents fostering and adopting Native American children. This is because of the Indian Child Welfare Act (ICWA) that became federal law in 1978.

What is the Indian Child Welfare Act?

The ICWA laws were passed over 40 years ago as a reaction to decades of separations involving Native families during the 19th and 20th centuries. For decades, children were often forcibly removed from their homes and sent to boarding schools run by white missionaries.

Those federal laws have been challenged in courts around the country. Now, the U.S. Supreme Court may weigh in on the constitutionality of the 1978 Act in Haaland v. Brackeen. Parties for and against the law, including the state of Texas, petitioned the nation's highest court to hear the case.

The child's best interests vs. tribal sovereignty

Texas and others want the ICWA struck down. They argue that the Act is race-based, making it extremely difficult for non-Native individuals and families to adopt Native children. They say the federal law contradicts Texas law, which looks at a child's best interests when deciding adoption cases. They point out that if the law is struck down, Native kids stuck in foster homes can be placed in loving homes faster.

Those who want to keep the ICWA, say it is about tribes’ rights to keep Native children from forgetting who they are. The tribes work hard to return them to their birth parents or match them with other Native American families through foster care situations that keep them rooted in their culture.

Both sides wait for clarity over adoption matters

There have been many court cases about the Act. But, so far, the various outcomes have only complicated the interpretation of the law. Both sides hope that the Supreme Court will settle the matter once for all.

The Non-Native Texas family that brought the original lawsuit is now attempting to adopt the boy's half-sister.