November 26, 2022

Washington – The Supreme Court on Wednesday challenges a federal law that gives Native American families priority in foster care and adoption proceedings for Native children.

The Indian Child Welfare Act, enacted in 1978, was intended to address the problem of Indigenous children being separated from their families and too often placed in non-Indigenous families.

Tribal leaders have long advocated this as a means of preserving families, traditions and culture.

However, white families seeking to adopt Native children are among the contenders who argue that the law is of an unacceptable racial basis and prevents the state from considering the child’s best interests.

The fate of this law rests in the hands of the courts who have made the focus of their current tenure on race. This case includes the redistricting of the House of Representatives and preferential treatment for college admissions. Two judges in the court, Chief Justice John Roberts and Judge Amy Coney Barrett, are also parents of the adopted child.

The 5th U.S. Circuit Court of Appeals last year overturned parts of the law, including priorities for placing Indigenous children in Aboriginal adoptive and Aboriginal foster homes. He also said that Congress went beyond authority by imposing its will on state officials on adoption matters.

However, the 5th Circuit also ruled that laws are generally based not on race, but on the political relationship between tribes and the US government.

The tribes and the Biden administration appealed part of the lower court ruling, while the white family and Texas, allied with it, appealed another part.

More than three-quarters of the 574 federally recognized tribes, along with tribal organizations, have asked the High Court for full support of the law. They fear widespread impact if the courts attempt to overthrow the tribe’s status as political monarchs.

Nearly 20 state attorney generals across the political spectrum have briefed in support of the law. Some states have codified federal law as their own state law.

A ruling in favor of the family and Texas could undermine the 1978 law and have far-reaching effects on their ability to govern, feared by tribes.

When child protection authorities deport a Native American child from their home, the law requires the state to notify the tribe and place the child with the child’s extended family, the child’s tribal member, or other Native American family.

At one point, all children involved in the current case are or may be enrolled as Navajo, Cherokee, Ojibwe White Earth Band and Isleta del Sur Pueblo. Some adoptions are complete, while others are still being challenged.

Before the Indian Child Welfare Act was enacted, 25 to 35 percent of Native American children left their homes and were placed in adoptive families, foster care, or institutions. Most were placed in boarding schools in an attempt to stay with or assimilate white families.


Associated Press reporter Felicia Fonseca of Flagstaff, Arizona contributed to the report.

Copyright 2022 AP. All rights reserved. This material may not be published, broadcast, reproduced or redistributed without permission.

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