The top legal officers of Texas, Louisiana and Indiana—all Republicans—are trying to end legal protections that make it more difficult for child welfare agencies to tear apart Native American families.
Texas Attorney General Ken Paxton argued that the Indian Child Welfare Act violates the equal protection guarantee of the Fifth Amendment because children are put into one of two child welfare systems based on whether they are Native American.
"The ICWA unlawfully attempts to coerce state agencies and courts to carry out an unconstitutional and illegal federal policy of deciding custody based on race," Paxton said.
Congress set up this dual system in 1978 after decades of native American families being destroyed by child welfare agencies. Twenty-five percent to 35% of all Native American children had been separated from their families and placed in adoptive homes, foster care or institutions.
Native American children are still more likely to be removed from their families by state child welfare systems.
The act, signed by President Jimmy Carter, requires that state agencies use "active efforts" to try to prevent the breakup of Native American families, notify people of pending proceedings and their right to intervene and keep records and make them available for inspection.
When a Native American child is removed, preference in placing the child must be given to the child's extended family, then to the child's tribe and then finally to other Native American tribes.
Chad and Jennifer Brackeen, a Fort Worth couple who have adopted a Native American boy and are trying to adopt his half-sister, are also plaintiffs in the suit. Chad Brackeen said in a court hearing that he had concerns about the Native American relative who also wanted to adopt the baby girl, including her smaller house.
"I don't know what that looks like—if she needs space, if she [the child] needs privacy," he said. "I'm a little bit concerned with the limited financial resources possibly to care for this child, should an emergency come up."
In October 2018, federal judge Reed O'Connor ruled the act was unconstitutional, but that decision was reversed by a panel of three Fifth Circuit judges. Paxton asked for all the judges of the Fifth Circuit to hear the case; oral arguments were held in January. Even Team Trump, which has presided over losing track of the migrant parents of 545 children, supports the Indian Child Welfare Act, writing that Native American children were removed by "abusive practices" by state and private agencies.
Psychiatrist Joseph Westermeyer told Congress before the act was passed that Native Americans he treated who had been removed from their families often did reasonably well in early childhood. But as teenagers, they frequently tried to kill themselves, used drugs and ran away.
"It's been my own experience that the vast majority of social workers called to assist Indian families when there is a crisis or distress, do a very poor job," Westermeyer said. "They do not work to keep the family intact."
The act widely is considered a"gold standard" in child welfare policy and provides rights to Native American families that other families in our country don't have such as requiring expert witness testimony before a judge approves placing a child in foster care.
Even with the extra protections, Native American children are still more likely to be removed from their families by state child welfare systems.
More than 250,000 children were removed from their parents in fiscal 2019, many who may have never needed to be separated from their parents. Less than half of children are reunified with their parents, and judges are terminating parental rights at a higher rate.