The first time I held my daughter, she was an hour old. Her birth mother had chosen me, trusted me, to raise this child she loved but couldn’t care for. In the days that followed, as a new mom with a baby I did not carry, I understood something no law had ever conveyed to me: family is neither defined by blood nor a bureaucratic designation. It is built during bath time, in middle-of-the-night feedings, in the thousand small moments that accumulate into a shared life. It is a state of being, not a coincidence or an assignment.
Tennessee’s House Bill 1904 (Senate Bill 0485), which seeks to enshrine the federal Indian Child Welfare Act of 1978 into state law, asks us to believe otherwise.
My daughter’s birth mother is a member of a Native American tribe located in the American Southwest, and my daughter is eligible for tribal membership as well. I understand the history behind this legislation and respect it deeply. ICWA was a response to genuine injustice — the systematic removal of Native children from their families by state agencies that showed callous disregard for tribal culture and identity. That history demands our active commitment to doing better. I carry that commitment personally.
But the question before Tennessee’s legislature is not whether ICWA was justified in 1978. It is whether embedding its framework permanently into state law serves Tennessee’s children today.
The bill’s sponsors say that it is intended only as a contingency — operative only if ICWA is repealed or invalidated federally. However, there is no immediate threat that ICWA will be either invalidated or repealed. Further, Tennessee’s Native American population is estimated to be only 0.25% of Tennessee’s total population. Tennessee has no officially recognized Native American reservations and only one organized tribal community within its borders. In this sense, this bill is a solution in search of a problem.
If ICWA were ever to be invalidated or repealed, this would be a victory for children and families. ICWA, and the TN bill, creates a placement hierarchy requiring that Native children be placed with Native families over non-Native ones — even over the explicit wishes of a child’s birth mother, and even when a loving, qualified non-Native family is ready to adopt. Tribal authorities have the right to intervene in child placement, including voluntary adoptions. And all placements must be processed through federal courts in addition to state procedures.
These requirements create real costs: uncertainty for prospective adoptive parents, dramatically higher adoption expenses, and — most critically — delayed permanency for children who need it most. For infants, delay burns through the earliest developmental weeks, when attachment matters most. For older children, it means more time in foster care without a permanent home. ICWA offers no timeline protections, no mechanism to expedite placement when delay causes harm, and no clear definition of “good cause” to depart from the preference hierarchy.
That ambiguity does not protect children. It protects process. It requires judges and bureaucrats to substitute their judgement as to what is best for the child, even over the wishes of a loving birth mother.
Today’s Native American populations are widely assimilated into American society, despite the best efforts of many, and for those that do live on Reservations, the poverty rate is significantly higher, and conditions are often poor. For example, an estimated 30% of households on the Navajo Reservation in Arizona lacked running water in 2023. Requiring a child to be placed in such poor conditions, particularly over the express wishes of a birth mother who has made an adoption plan to give their child a better life, certainly is no longer in the best interests of any child.
Non-Native adoptive parents are not a threat to Native culture. The days of forced assimilation are gone. Many of us actively seek out cultural education and raise our children with an honest, loving account of where they come from. The assumption that a non-Native home is inherently hostile to cultural identity is contradicted by the lived experience of thousands of families.
ICWA has served its purpose as a corrective to a specific historical wrong. But it now risks becoming a barrier to permanency and it fails to provide equal protection for native children, despite the U.S. Constitution’s requirement of equal protection for all. Tennessee has made real strides toward prioritizing a child’s best interests — but still has miles to go to place every deserving child in a loving home. This bill moves us in the wrong direction.
My daughter doesn’t know anything about this debate. She knows she is adopted and that I am her mother. She also knows — because we have made sure she knows — that her birth mother loves her and that she comes from a people with a beautiful and resilient history, and that this history belongs to her.
Every child in Tennessee deserves both of those things: a safe and permanent home, and an honest connection to who they are. Our laws should deliver both — not delay one while bureaucracy works through the other.
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Lauren Topping is a Of Counsel at the law firm Holtzman Vogel, where she focuses on election law, campaign finance, compliance and ethics. Ms. Topping previously served as General Counsel for the Tennessee Bureau of Ethics and Campaign Finance.
