The Indian Child Welfare Act of 1978 gives preference to adoption solutions that would keep Native children within the tribal community.
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WASHINGTON — The Supreme Court agreed on Monday to hear a challenge to the constitutionality of the Indian Child Welfare Act of 1978, which makes it hard to remove Native American children from their parents, their tribes and their heritage.
The law, which calls for special procedures in adoptions, was rooted in the sovereignty of Indian nations and a history of abusive child welfare practices involving Native American children. Before the law was enacted, hundreds of thousands of Native children were taken from their homes, sometimes by force, and placed in institutions or with families with no ties to their tribes.
Family courts ordinarily base their decisions on the best interests of the child before them. The 1978 law said that where Native American children are concerned, those interests include protecting their relationships with their tribes.
“The tribe has an interest in the child which is distinct from but on a parity with the interest of the parents,” Justice William J. Brennan Jr. wrote in a 1989 decision, Mississippi Band of Choctaw Indians v. Holyfield. This was, Justice Brennan added, “a relationship that many non-Indians find difficult to understand.”
Legal scholars say that if the rationale for striking down the law survives, it could also threaten laws that guard tribal casinos and water and land rights.
Three states — Texas, Louisiana and Indiana — and seven people sued the federal government to challenge the law, saying it was an impermissible intrusion into matters traditionally governed by state law and a violation of equal protection principles by putting a thumb on the legal scale based on the race of one of the parties.
Lawyers for the states told the Supreme Court that the law “creates a child-custody regime for Indian children that is determined by a child’s genetics and ancestry,” adding that “this race-based system is designed to make the adoption and fostering of Indian children by non-Indian families a last resort through various legal mechanisms that play favorites based on race.”
Several tribes, including the Cherokee and the Navajo, two of the country’s largest, intervened in the case to defend the law. In the Supreme Court, they called the states’ race-discrimination argument inflammatory. The 1978 law, they wrote, “is tied to membership in Indian tribes — which is about politics, not race.”
The tribes and the federal government told the court that the law has been effective but that Native American children remain more likely to be removed from their homes than other children.
In its brief, Texas said that was a result of societal conditions. “The United States and tribes make no effort,” lawyers for Texas wrote in a brief, “to disprove the common-sense conclusion that today, the high numbers of adoptions and fostering of Indian children are often a sign, not the cause, of the high risk of neglect, violence, gang activity, drug abuse, alcoholism and suicide among Indian children.”
The challengers mostly prevailed before a federal trial court and a divided three-judge panel of the United States Court of Appeals for the Fifth Circuit, in New Orleans. The full Fifth Circuit reheard the case, issuing a fractured decision that caused both sides to seek Supreme Court review.
The Supreme Court granted review in four appeals, including Haaland v. Brackeen, No. 21-476. The court will hear arguments in its next term, which begins in October.
Jan Hoffman contributed reporting.