A child custody battle involving a Texas foster couple who wish to adopt a Native American child placed in their care has raised questions about the constitutionality of a 40-year-old federal law. The Indian Child Welfare Act requires authorities to give Native American families priority in adoption cases involving Native American children. Congress passed the law to protect Native American communities and culture, but the federal judge who heard the case involving the Texas couple ruled that it was unconstitutional because it was based on race.
That decision is now being appealed, and Native American leaders are worried that other laws put into place to protect their communities could be questioned if it is affirmed. The constitutionality of the ICWA is also being challenged in federal courts by lawsuits filed by the states of Louisiana and Indiana. Many legal experts believe that the issue will eventually be argued before the Supreme Court.
Should the nation's highest court choose to rule on the matter, one of the issues the justices will be faced with is deciding whether constitutional provisions dealing with race should apply to Native Americans. Native American culture is defined by tradition rather than genetics, and the country's 573 Native American tribes all have different requirements for membership. Supporters of the ICWA say that this makes being Native American more of a political than a racial designation.
This case reveals that experienced family law attorneys may take child custody cases even when doing so involves challenging long-established laws, and it also shows that the courts could be open to their arguments if they are persuasive. Most custody cases are based on the welfare of the children involved rather than the constitutionality of federal legislation, and sympathetic parents may be able to sway family law judges more effectively than legal arguments.