Should Native Individuals Receive Priority when it Comes to Adoptions?

It was in 2017 when Jennifer and Chad Brackeen, a couple from Texas, wanted to adopt the native child they had fostered for over a year. The boy was just a toddler at the time. However, the couple soon learned that they could not adopt the child because they were not native, but he was. Even though the boy’s biological parents, members of the Cherokee Nation and Navajo Nation, supported the adoption, the couple was still not allowed to adopt him. Shortly after learning this, the Brackeen’s sued the U.S. Interior Department in 2017.

The fact that native adoptive parents are given priority over other couples when it comes to adoption is perfectly legal. However, it was left to the appeals court to determine if they are the ones to overturn the law in what would surely be a landmark case.

The Indian Child Welfare Act

The fact that the Brackeen’s were not allowed to adopt the child is due to the Indian Child Welfare Act. This Act, which was passed by Congress over 40 years ago, was actually meant to protect native children that were up for adoption. Many parts of it have been challenged many times, but the ICWA has never lost these cases in court.

The Act states, among other things, that native children that are up for adoption must be placed with members of their family, their tribe, or other families with a Native American background. While the reasoning for this may sound unfair, the premise of the law was initially quite fair. It was meant to provide a solution to policies that once allowed the government to seize native children from their parents without any cause.

Some of these policies were also meant to eradicate the child’s tribal identity. The Act was meant to remedy that, as well, and actually place children with families that would help reinforce that identity and give native children a sense of belonging.

At the time, it seemed as though there was a real need for this type of law. Twenty-five to thirty-five percent of children were being taken from homes, even when there were qualified family members that wanted to foster or adopt the child. Additionally, 85 percent of children were placed in homes that were not with their family, or even their tribe.

Problems with the Act

Although the Act was meant to remove bias as part of the child custody process, it bred it against families that wanted to adopt native children. When a couple, such as the Brackeens, wish to adopt a child, their race is considered, and they are automatically disqualified from the process.

It has also been argued that the Act does not take the child’s best interests into consideration when they are up for adoption. A non-native couple, for example, could be the perfect placement for a child, but just because of their race, they could not adopt. This may be devastating to families, particularly those that had such a hand in raising the child for such a long time, as the Brackeens did with this child.

“Racism is against the law, and it really is as simple as that,” says Attorney Sara Khaki of Atlanta Divorce Law Group. “This is true when a person is looking for employment, wants to adopt a child, or in any other situation in life. When anyone experiences racism, it is important that they understand they can take action, just as the Brackeens did.”

The Brackeens did take legal action. They filed a lawsuit, and when they lost, they went to the appeals court to fight the decision. In a 2-1 ruling, the appeals court agreed that the Act was unconstitutional and that the Brackeens should be allowed to adopt the boy, which they eventually did.

This recent case is not the only way child custody cases can become complex, although it is certainly unique. It does show that when these disputes arise, they can be fought and won in court. An attorney familiar with child custody cases, and the laws of the state, can help ensure individuals are successful with their case and achieve the positive outcome they are hoping for.

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