The Phaserl


Do the Feds Belong in Indian Adoption Law? Part II

by Rob Natelson,

There is little more heart-rending than the sorrow of a child.

The sorrow of a child—and of her adoptive parents—created one of the Supreme Court’s more compelling cases this term. I was happy to be cited extensively in one of the opinions. And, much more importantly, happy that the Court acted to minimize the sorrow of the child and of her adoptive parents.

In 1978, Congress passed the Indian Child Welfare Act (ICWA). By this measure, Congress invaded yet another area traditionally governed by the several states: adoption and relinquishment of parental rights.

The ICWA had a worthy purpose: to prevent tribes from being decimated by the wholesale adoption of Indian children by non-Indian families. However, the ICWA has at least two serious flaws. First, it can lead to sorrow and injustice. Second, outside the regulation of military personnel, the Constitution gives Congress no authority to meddle in adoptions or parental rights—even those involving Native Americans.

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Click Here for Part I

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