Fifth Circuit Family Law Case Could Affect Texas Adoptions


The U.S. Fifth Circuit Court of Appeals, which considers Texas appeals, recently heard oral arguments in an adoption case.

The case, Brackeen v. Bernhardt, concerns the Indian Child Welfare Act of 1978 (ICWA). According to a recent report about the case in Vox, the court’s ruling could affect future Texas adoptions.

The case began when a couple in Fort Worth, Texas adopted a 10-month-old Navajo and Cherokee baby.

The adoption took place in June 2016. The baby’s biological mother is Navajo and had been living in Texas at the time. First, the baby entered into the foster care system. Jennifer and Chad Brackeen decided to foster a child, and the state placed the baby with them. The Brackeens are a white couple. They indicated plans to adopt the baby. However, under the ICWA, the Navajo tribe intervened and indicated an Indigenous family could take the baby.

The ICWA is supposed to provide certain protections to American Indian communities.

Specifically, the law is designed to prevent the government from separating American Indian families. The law was passed in 1978. It responded to policies where states forcibly removed Native children and placed them with white families or in boarding schools. The ICWA provisions help ensure that Native children, even when placed for adoption, remain with Native families.

Ultimately, the Brackeens adopted the boy.

Their case has gone through the court system, however, and the State of Texas joined the case. Several other organizations supported the case, including the Goldwater Institute. The plaintiffs—the Brackeens and the State of Texas—argue that the ICWA is too broad. The lawsuit seeks to overturn it. Indeed, the plaintiffs argue that the federal government should play a more limited role in Native adoptions. Moreover, the plaintiffs contend that the ICWA should be rendered unconstitutional.

According to Texas family law attorney Lauren Cain, “the outcome of this case will affect adoptions in Texas.” As Cain clarified, “a ruling for the plaintiffs would change the way adoptions of native children work in this state.”

The Fifth Circuit heard oral arguments in late January. Ultimately, the court’s ruling could have an enormous impact on Native governance issues. In terms of family law in Texas, it could change the rules for certain adoptions. If the court finds in favor of the plaintiffs, more Texas families may seek to adopt Native children. The process for adopting a Native child would be much different if the court decides the ICWA should not stand.

Contact the Law Office of Lauren Cain at (214) 234-2622.

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