Our family became foster parents in 2018 to a little girl (for privacy, I’ll call her Alice) who, at the time, was about to turn 2 years of age.

She’s nearly 3 and a half.

She’s still not adopted, despite our desire to adopt her.

It’s in no small part because of ICWA.

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When a state terminates parental rights, several things must happen, including a number of prior hearings and notices given. One such notice involves the Indian Child Welfare Act (ICWA), a federal statute that places obligations on state government officials and state courts in child custody disputes if there is reason to believe the child may be of tribal descent.

Alice was born in late 2016 at 26 weeks and lived in the hospital for several months. I won’t chronicle her health troubles or complications here, except to note they were (and are) extensive.

Shortly after birth, the biological mother represented that there was Indian ancestry on her mother’s side, naming a small tribe. That triggered ICWA obligations on county officials to investigate and file notice with the tribe. If the tribe doesn’t respond after sufficient notice, the hearing proceeds.

The notice included some information about the mother’s ancestors, but not some other information. The tribe never responded to the notice.

This all predated our involvement in Alice’s life. She came into our home in 2018. In early 2019, parental rights were terminated. The parents appealed.

And on appeal (after a lengthy briefing process that took the better part of a year), the state court concluded that the county failed to comply with ICWA’s notice requirements (and with California’s requirements implementing ICWA). The case was sent back for further proceedings. Notice was re-issued. Hearings remain pending. Further appeals remain possible.

The county’s investigations have been challenging for a variety of reasons—the biological family’s ancestors were resistant to disclosing information. There was never evidence of tribal enrollment of any ancestral family member. It’s not clear that the investigation led to much additional information to notice the tribe.

My own (entirely amateur) research revealed that this particular tribe only enrolls members who were born to enrolled members and born on tribal reservation lands—Alice meets neither condition.

But ICWA requires county officials to investigate and provide notice so that the court can assess whether it is in the best interest of the child to be adopted in a tribal family or outside of it.

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Intellectually, I understand ICWA. Given some dubious historical behavior surrounding some adoptions of children from tribal lands, providing additional guarantees to tribal relatives in adoption proceedings undoubtedly does great good for many children who would otherwise be separated from relatives and from their cultural heritage.

But in our case, like those of others, it is a deeply frustrating encounter, one that we wait patiently to navigate through.

Alice has been in state care since her birth. Ideally, disputes like hers are resolved before she turns 2 to provide her stability and security. It’s not clear that her case will be resolved before she’s 4.

From health care to child care, we navigate deep administrative challenges as a family each day that Alice is not legally adopted.

I write this not because I have strong thoughts on the litigation in Brackeen v. Bernhardt, the case makes its way through the Fifth Circuit on the constitutionality of ICWA. (It is interesting, however, how the case is characterized for certain constitutional issues, sometimes in ways that I don’t consider entirely accurate now that I’ve actually experienced it.)

Instead, I write it as someone witnessing the law in a decidedly non-lawyer-ly role of a foster parent. Despite being a licensed attorney and a teacher of law, I am pretty much an observer in this process, as things are largely outside our control.

ICWA as a statute—regardless of its constitutionality—is, I think, sadly not working as intended. I’m far from an expert in this area (again, a reason I’m not inclined to weigh in the constitutional issues in dispute). But simply directly experiencing the operation of a law like this offers me the small insight that there must be better ways—rules that can be better tailored to advance the best interests of children and Indian tribes, and rules that give children like Alice speedier placement into safe homes. Maybe those happen through improved administration and education (including improving counties’ abilities to more easily comply, or streamlining the notice process through tribes). Maybe they happen through Congress updating laws. I’m not sure. I can only experience some of the frustration and wait it out.

I have only seen a small piece of what the foster system looks like, and an even smaller piece of how Indian tribes are affected by the foster system. But I’m increasingly aware of how laws might affect children like Alice, and my awareness comes from this unique exposure in a non-legal setting.

I’ve assuredly had my eyes opened in other ways looking at our legal system as a relative outsider in the fostering process. And maybe I’ll write more about it in the years ahead.