AUSTIN – On Oct. 26, Attorney General Ken Paxton filed a lawsuit in U.S. District Court alongside a Texas foster family challenging the Indian Child Welfare Act, which Congress created in 1978.
The Texas Family Code provides that all cases of custody and adoption must focus on the best interest of the child.
However, ICWA mandates different rules for custody and adoption cases involving children from federally recognized Native American tribes that could compel a placement that is directly against the best interest of the child, a press release states.
“I’m suing the federal government today to protect the best interest of Texas children,” Paxton said. “The Constitution makes clear that people are more than just their racial background. But ICWA elevates a child’s race over their best interest in a way that could endanger Texas children. Such an unconstitutional and dangerous law cannot stand.”
A non-Native American Texas married couple is at the center of Attorney General Paxton’s lawsuit.
The family wants to adopt a two-year-old Native American child they have fostered since he was ten months old. The child’s biological parents and grandmother support the adoption. And the court-appointed, neutral guardian ad litem believes placement with the foster family is in the child’s best interest.
But a state court believed ICWA required a different outcome solely because of the child’s race: to live with an unrelated Native American family with whom he had no previous connection.
“The Indian Child Welfare Act is unconstitutional, discriminatory and invades every aspect of Texas family law as applied to Native American children,” Paxton told the court. “It coerces state agencies and courts to carry out unconstitutional and illegal federal policy, and make child custody decisions based on racial preferences.”