Insight

Tribal Sovereignty or Discrimination?

The Indian Child Welfare Act was designed to help keep Native American children from being adopted outside their tribes. Now it’s under threat.

Potential Changes to Indian Child Welfare Act
JZ

Janice Zhou

March 23, 2020 08:00 AM

The 41-year-old Indian Child Welfare Act (ICWA) has been recently challenged and may come before Supreme Court next year.

The law was enacted in 1978 to “protect the best interest of Indian children and promote the stability and security of Indian tribes and families by the establishment of minimum federal standards for the removal of Indian children and placement of such children in homes which will reflect the unique values of Indian culture.”

The constitutionality of ICWA was called into question in Texas when two foster parents, neither of whom is Native American, wanted to adopt a boy who is half Navajo and half Cherokee. The federal judge ruled in the parent’s favor, declaring that the law was unconstitutional because it was based on race. However, the case was appealed to the Fifth Circuit Court of Appeals where a three judge panel overturned the District Court’s opinion.

According to the National Indian Child Welfare Associate, they believe the plaintiffs will petition the Supreme Court.

We talked to a Best Lawyers-recognized attorney who specializes in Native American law in Colorado to get her thoughts on the Indian Child Welfare Act and the challenges to it:

Melody McCoy
Native American Rights Fund
Recognized for Native American Law Since 2013

Who do you think is benefiting from challenging the act?

Four decades later, ICWA is under attack, mostly by private for-profit adoption agencies that have a financial incentive to see more Native American children available for adoption through their services, as well as ideologists who object generally to the limited separate and independent legal and political status of Native American tribes in the United States.

How did the creation of the act help the Native American population?

In 1978, Congress enacted the Indian Child Welfare Act, based on Congress’ power to regulate Native American tribes and its policy of protecting tribal interests, to better regulate proceedings in state and tribal courts for termination of parental rights, adoptions, and foster care placement cases involving Native American children, based on well-documented evidence of Native American children being disproportionately—as many as 85 percent nationwide—removed from their families, communities, and tribes without notice and other due process protections.

How will this specifically affect Colorado if it is overturned?

If ICWA is found to be unconstitutional—either on the basis that it illegally discriminates based on race, in violation of the Fifth Amendment’s equal protection guarantee, or that it places unconstitutional burdens on state agencies and courts, or that it exceeds congressional power—it will affect Native Americans throughout the country, including the estimated 60-70,000 Native Americans residing in Colorado. Tribes will lose the rights and protections for adoption and placement of Native American children that the act provides, and Native American children likely again will be taken from their tribes, communities, and families.

Related Articles

IN PARTNERSHIP

Five Considerations Choosing A Colorado Car Accident Lawyer


by Lisandra Matos

One lawyer explains five considerations you should take when choosing the right Colorado lawyer if you have been injured or are facing insurance claims after a car accident.

Red and white toy car colliding by magnifying glass on orange background

ESG Changing Texas’ Legal Landscape


by Gregory Sirico

Best Lawyers breaks down the growing industry trend of ESG standards and how its altering the field of law in the state of Texas.

Texas’ Ever Changing Legal Landscape

Colorado "Lawyer of the Year" 2022


by Best Lawyers

Jane E. Young is honored as 2022 "Lawyer of the Year" in Colorado for Insurance Litigation.

Colorado "Lawyer of the Year" 2022

Colorado's Best Lawyers 2022


by Best Lawyers

Our 2022 Colorado's Best Lawyers publication features top-ranked legal talent in Boulder, Denver and Western Colorado.

Colorado's Best Lawyers 2022

New York In the Law


by Gregory Sirico

Courts in the New York area have continued to hear cases, many of them years-long battles that are still ongoing. Here is a look at some recent court cases.

New York In the Law

Southern California in the Law


by Gregory Sirico

Courts in Southern California have continued to hear cases, many of them years-long battles that are still ongoing. Here is a look at some recent court cases in Southern California.

Southern California in the Law

South Florida In the Law


by Gregory Sirico

Courts in South Florida have continued to hear cases, many of them years-long battles that are still ongoing. Here is a look at some recent court cases in South Florida.

South Florida In the Law

Northern California In the Law


by Gregory Sirico

We explore three legal cases in Northern California.

Northern California In the Law

Tampa In the Law


by Gregory Sirico

We explore three legal cases in Tampa.

Tampa In the Law

Midwest In the Law


by Gregory Sirico

We examine five court cases that are ongoing in Illinois, Michigan, Ohio, Minnesota and Indiana.

A Look at Court Cases in the Midwest

Washington, D.C. In the Law


by Gregory Sirico

We explore three legal cases in Washington, D.C.

Washington, D.C. In the Law

Elections Dustup


by Rachel Shrewsbury

Two election security bills working their way through the Texas House and Senate are creating divisions within the Texas GOP and meeting stiff opposition from many who view them as voter suppression.

Elections Dustup

Dress Codes


by Janice Zhou

A controversial bill banning religious symbols leaves Québec divided.

Religious Symbols

Legislation Under Fire


by Janice Zhou

The legal battle for gun regulation in Florida moves forward.

Gun shots on target practice

No Place Like Home


by Janice Zhou

The housing crisis across the country has been exacerbated by the COVID-19 pandemic, California being no exception. However, state laws have recently been passed to address the problem.

Two people in a window

Restore the Vote


by Janice Zhou

Voting rights for felons is shifting. Florida allows ex-felons to register to vote after they have completed their entire sentence, including incarceration, probation, and parole.

Polling station for voting

Trending Articles

2025 Best Lawyers Awards Announced: Honoring Outstanding Legal Professionals Across the U.S.


by Jennifer Verta

Introducing the 31st edition of The Best Lawyers in America and the fifth edition of Best Lawyers: Ones to Watch in America.

Digital map of the United States illuminated by numerous bright lights

Unveiling the 2025 Best Lawyers Awards Canada: Celebrating Legal Excellence


by Jennifer Verta

Presenting the 19th edition of The Best Lawyers in Canada and the 4th edition of Best Lawyers: Ones to Watch in Canada.

Digital map of Canadathis on illuminated by numerous bright lights

Legal Distinction on Display: 15th Edition of The Best Lawyers in France™


by Best Lawyers

The industry’s best lawyers and firms working in France are revealed in the newly released, comprehensive the 15th Edition of The Best Lawyers in France™.

French flag in front of country's outline

Presenting the 2025 Best Lawyers Editions in Chile, Colombia, Peru and Puerto Rico


by Jennifer Verta

Celebrating top legal professionals in South America and the Caribbean.

Flags of Puerto Rico, Chile, Colombia, and Peru, representing countries featured in the Best Lawyers

Unveiling the 2025 Best Lawyers Editions in Brazil, Mexico, Portugal and South Africa


by Jennifer Verta

Best Lawyers celebrates the finest in law, reaffirming its commitment to the global legal community.

Flags of Brazil, Mexico, Portugal and South Africa, representing Best Lawyers countries

Announcing the 13th Edition of Best Lawyers Rankings in the United Kingdom


by Best Lawyers

Best Lawyers is proud to announce the newest edition of legal rankings in the United Kingdom, marking the 13th consecutive edition of awards in the country.

British flag in front of country's outline

Discover The Best Lawyers in Spain 2025 Edition


by Jennifer Verta

Highlighting Spain’s leading legal professionals and rising talents.

Flags of Spain, representing Best Lawyers country

Prop 36 California 2024: California’s Path to Stricter Sentencing and Criminal Justice Reform


by Jennifer Verta

Explore how Prop 36 could shape California's sentencing laws and justice reform.

Illustrated Hands Breaking Chains Against a Bright Red Background

Announcing the 16th Edition of the Best Lawyers in Germany Rankings


by Best Lawyers

Best Lawyers announces the 16th edition of The Best Lawyers in Germany™, featuring a unique set of rankings that highlights Germany's top legal talent.

German flag in front of country's outline

Celebrating Excellence in Law: 11th Edition of Best Lawyers in Italy™


by Best Lawyers

Best Lawyers announces the 11th edition of The Best Lawyers in Italy™, which features an elite list of awards showcasing Italy's current legal talent.

Italian flag in front of country's outline

Tampa Appeals Court ‘Sends Clear Message,” Ensuring School Tax Referendum Stays on Ballot


by Gregory Sirico

Hillsborough County's tax referendum is back on the 2024 ballot, promising $177 million for schools and empowering residents to decide the future of education.

Graduation cap in air surrounded by pencils and money

Find the Best Lawyers for Your Needs


by Jennifer Verta

Discover how Best Lawyers simplifies the attorney search process.

A focused woman with dark hair wearing a green top and beige blazer, working on a tablet in a dimly

Key Developments and Trends in U.S. Commercial Litigation


by Justin Smulison

Whether it's multibillion-dollar water cleanliness verdicts or college athletes vying for the right to compensation, the state of litigation remains strong.

Basketball sits in front of stacks of money

Woman on a Mission


by Rebecca Blackwell

Baker Botts partner and intellectual property chair Christa Brown-Sanford discusses how she juggles work, personal life, being a mentor and leadership duties.

Woman in green dress crossing her arms and posing for headshot

Best Lawyers Celebrates Women in the Law: Ninth Edition


by Alliccia Odeyemi

Released in both print and digital form, Best Lawyers Ninth Edition of Women in the Law features stories of inspiring leadership and timely legal issues.

Lawyer in green dress stands with hands on table and cityscape in background

The Human Cost


by Justin Smulison

2 new EU laws aim to reshape global business by enforcing ethical supply chains, focusing on human rights and sustainability

Worker wearing hat stands in field carrying equipemtn