A federal appeals court is considering the legality of a complicated adoption law. The 1978 law intended to protect Native American children. It gave preference in foster care and adoption to families of the same tribe and heritage. But if loving parents of different races or cultures can provide safe homes for Native American children without families, should tribes interfere?
Congress passed the Indian Child Welfare Act in 1978 because many Native American children were being removed from their homes by public and private agencies. In adoptions of such children, the law requires states to notify tribes and seek placement with the child’s extended family, members of the child’s tribe, or other Native American families. Tribes have sovereign nation status within the federal United States. This gives them a say in foster care placements that lead to adoptions.
Texas couple Chad and Jennifer Brackeen felt the law’s effect. They fostered a baby with ties to Navajo and Cherokee tribes. The boy’s parents voluntarily terminated their parental rights. The Brackeens petitioned to adopt the child they cared for and loved. But the state first denied their request. The Navajo Nation had found a potential home with an unrelated New Mexico Navajo family.
The Brackeens charged that the Navajo Nation’s motive wasn’t for the child’s welfare. They stated in a brief that the boy would be removed “from the home in which he had spent most of his life and given to an unrelated Navajo couple—simply because he was an Indian.”
Supporters of the law say they are not making racial determinations. They claim the law is political. They see these children as members of their sovereign nation tribes—not unlike other nations that don’t allow international adoptions of children born to citizens.
But is that always wisest for the child? King Solomon was once approached by two women fighting over parental rights. He heard both claims, and then offered a shocking judgment: Divide the child in two, so that each party’s claim could be met. Of course, the king knew a mother’s love would allow no such harm to her baby. The child’s best interest was the real mother’s paramount concern. King Solomon then knew to whom the child belonged. (See 1 Kings 3:16-28)
Can today’s courts make decisions with that kind of wisdom?
The Brackeens went to court, and in January 2018 they were allowed to adopt the boy they had been raising—but only after the Navajo placement fell through. The boy is now three years old. The Brackeens want to adopt his younger half-sister. It is unclear whether that adoption will be permitted under the Indian Child Welfare Act.
A federal district judge in Texas struck down the Act last year in a victory for its opponents. A federal appeals court in New Orleans heard arguments supporting the law earlier this spring. The appeals court could overturn or uphold the Texas judge’s decision. An immediate ruling from the appeals court is not expected, however.