WASHINGTON — The Supreme Court on Monday agreed to hear a challenge to the constitutionality of the Indian Child Welfare Act of 1978, which makes it difficult to remove Native American children from their parents, tribes and heritage.
The law, which provides special procedures for adoptions, was rooted in the sovereignty of Indian Nations and a history of abusive child welfare practices involving Native American children. Prior to the law’s enactment, hundreds of thousands of indigenous children were taken from their homes, sometimes forcibly, and placed in institutions or with families unrelated to their tribe.
Family courts generally base their decisions on the best interests of the child before them. The 1978 law stated that with respect to Native American children, these interests include protecting their relationship with their tribes.
“The tribe has an interest in the child that is distinct from but parity with the interest of the parents,” Judge William J. Brennan Jr. wrote in a 1989 decision, Mississippi Band of Choctaw Indians v. Holyfield. It was, Judge Brennan added, “a relationship that many non-Indians find difficult to understand.”
Lawyers say that if the rationale for overturning the law survives, it could also threaten laws that protect tribal casinos and water and land rights.
Three states – Texas, Louisiana and Indiana – and seven individuals have 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 the principles of equal protection by putting a thumb on the legal scale based on the race of one of the parties.
State attorneys told the Supreme Court that the law “creates a child custody scheme for Indian children that is determined by the genetics and ancestry of the child,” adding that “this race-based system is designed to make the adoption and fostering of Indian children from 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 largest in the country, have intervened in the case to defend the law. At the Supreme Court, they called the states’ racial 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 was effective but that Native American children were more likely to be removed from their homes than other children.
In its brief, Texas said this resulted from societal conditions. “The United States and the tribes make no effort,” the Texas attorneys wrote in a brief, “to refute the commonsense conclusion that today the high number of adoptions and fostering of children Indian children is 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 in a federal trial court and a three-judge split panel of the United States Court of Appeals for the Fifth Circuit in New Orleans. The full Fifth Circuit reconsidered the case, issuing a fractured decision that led both sides to seek a Supreme Court review.
The Supreme Court granted review in four appeals, including Haaland v. Brackeen, No. 21-476. The court will hear arguments during its next term, which begins in October.
Jan Hoffman contributed report.