Congress passed the Indian Child Welfare Act in 1978 to protect Indian children from removal from their tribes and assure tribal governments the opportunity to raise Indian children in a manner reflecting “the unique values of Indian culture” (25 U.S.C. § 1902). However, while some children and families faced with foster care, adoption or child custody disputes have felt protected by the law, others have felt forced into relationship with tribal governments. The national dilemma has become whether an individual’s right to privacy and choice is of less priority than tribal sovereignty and the future of the tribe.
In 2013, Supreme Court Justice Clarence Thomas noted, “In light of the original understanding of the Indian Commerce Clause, the constitutional problems that would be created by application of the ICWA here are evident” (Adoptive Couple v. Baby Girl 2013).
Further, some tribal attorneys assert a right to claim any child deemed a member. Supporting a case involving a child of 1% heritage, Chrissi Nimmo, Attorney General for the Cherokee Nation has stated, “… we repeatedly explained that… tribes can choose members who don’t have any Indian blood” (Rowley 2015).
In light of the constitutional issues inherent in the law and its damaging overreach, the ICWA needs to be repealed.