The Supreme Court Will Consider Native American Adoption Legislation

The United States Supreme Court decided Monday to consider legislation governing Native American child adoption.

The law in question is the 1978 Indian Child Welfare Act (ICWA), which prioritizes Indian children being placed with relatives, other Native Americans, or a tribe, among other things.

The law’s purpose was to end prior practices in which adoption agencies removed hundreds of thousands of Native American kids from their households and placed them in group homes or placed them with white families. 

Political, Not Racial

According to The New York Times, Texas, Louisiana, Indiana, and seven people sued the federal government over the statute. 

Per the reports, state attorneys informed the high court that the legislation “creates a child-custody rule for Indian kids that is ascertained by a child’s genetic factors and ancestry.”

Certain Native American groups are advocating for the law’s continuation.

“We understand the critical nature of maintaining our children’s ties to their families, communities, and traditions.”

“The ICWA established itself as the reference standard of child welfare legislation, which is why presidencies, tribes and tribal institutions, and child welfare specialists continue to defend it,” Cherokee Nation Principal Chairman Chuck Hoskin Jr. and three other tribal leaders stated in a statement.

“We will never tolerate a return to a period when our children were violently taken from their communities, and we look forward to defending ICWA in court.”

Numerous tribes, including the Cherokee and Navajo, took up the cause of defending the law. They stated the 1978 statute “is linked to tribal affiliation, which is a matter of politics, not race.” 

Socioeconomic Reasons

The national government and tribes also assured the Supreme Court the statute worked. Still, Native American children remain more likely than other children to be removed from their homes.

According to Texas’ brief, this was due to socioeconomic causes.

According to the Times, “the United States and tribal groups do not attempt to refute that today’s high rates of adoption and nurturing of Indian children are frequently a symptom, not a cause, of high risk of neglect, abuse, gang crime, substance abuse, alcoholism, and suicidal behavior among Indian children.” 

The United States Court of Appeals for the Fifth Circuit maintained portions of a lower court’s decision, but reversed others.

The appeals court “found the provisions violate the 10th Amendment (among other things) because they ‘commandeer’ – that is, impose burdens on – the states.” 

As per Ballotpedia, Debra Haaland formally appealed to the U.S. Supreme Court in September concerning Haaland v. Brackeen, as Secretary of the Interior. Both parties have asked the Supreme Court to intervene.

Haaland v. Brackeen is bundled with Cherokee Nation v. Brackeen, Texas v. Haaland, and Brackeen v. Haaland for one hour of oral argument.

The Supreme Court will hear the appeals during the upcoming term, which begins in October.