Texas judge deems Indian Child Welfare Act ‘unconstitutional’

WASHINGTON – It is a law that has created headlines across Oklahoma following a very public adoption battle.

In 2013, all eyes were turned to the courts as judges decided the fate of a little girl nicknamed “Baby Veronica.”

Baby Veronica was put up for adoption by her mother after she says Veronica’s father signed away his parental rights.

“He let me know that he wanted to sign his rights away and that he had spoken to his family and they all agreed that that’s what would be best for him if that’s what he did,” Christy Maldonado said in 2013.

Maldonado she chose a South Carolina couple to adopt her daughter.

After the Capobiancos legally adopted Veronica, her biological father, Dusten Brown, challenged the adoption.

Even though she lived with the couple for more than two years, the matter had to be decided by the court.

Veronica’s biological father used his status as a Cherokee Indian to challenge the adoption to try to get his daughter back two years after her adoption to the non-Native American couple from South Carolina.

The Cherokee Nation argued that she was protected under the Indian Child Welfare Act of 1978. According to the Indian Child Welfare Act, as long as the tribe considers you a member they have a voice in your adoption.

Ultimately, the U.S. Supreme Court ruled that Veronica should be sent to live with the Capobiancos in South Carolina.

Now, a federal judge in Texas has ruled that the major law in that 'Baby Veronica' case is unconstitutional.

On Oct. 4, U.S. District Judge Reed O'Connor found that the Indian Child Welfare Act of 1978 illegally gives Native American families preferential treatment in adoption proceedings for Native American children based on race. He says that is a violation of the Fifth Amendment's equal protection guarantee.

According to the Washington Post, the main dispute in the lawsuit was whether the law's preferential treatment was based on race or based on the child's affiliation with a tribe as a citizen. The judge ultimately decided that it was a "race-based" statute.

The defendants in the case have indicated that they plan to appeal the ruling.

“We remain steadfast in our commitment to defend the constitutionality of ICWA by all available means for one simple reason,” the law firm Kilpatrick Townsend & Stockton, which represents the tribes, said in a statement. “If ICWA is struck down in whole or in part, the victims will be our children and our families, Native children and Native families.”