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Supreme Court to review Indian Child Welfare Act, which prioritizes adoptions by Native Americans

The Supreme Court will consider the constitutionality of a federal law intended to rectify past abuses of Native American children being removed from their homes and tribes, the justices announced Monday.

The court consolidated four cases about the 1978 Indian Child Welfare Act (ICWA), which prioritizes placement of Indian children with relatives, other Native Americans or a tribe. The act was intended to stop past practices in which hundreds of thousands of Native American children were removed from their homes by adoption agencies and placed with White families or in group settings.

Native Americans say the law is essential to them, and have pledged to defend it.

“We know the importance of keeping our children connected with their families, communities, and heritage. ICWA has proven itself as the gold standard of child welfare law, which is why both Republican and Democratic administrations, tribes and tribal organizations, and child welfare experts continue to defend it,” Cherokee Nation Principal Chief Chuck Hoskin Jr. and three other tribal leaders said in a statement.

“We will never accept a return to a time when our children were forcibly removed from our communities, and look forward to fighting for ICWA before the Court.”

Rosa Soto Alvarez of Tucson holds a flag of the Pascua Yaqui Tribe as she and other Native Americans stand outside the federal appeals court in New Orleans in January 2020, when the 5th U.S. Circuit Court of Appeals heard arguments on the constitutionality of the Indian Child Welfare Act. (Kevin Mcgill/AP)

The law is being challenged by seven individuals and three states, led by Texas. The plaintiffs contend the law requires state officials to put aside the traditional standard of doing what is best for the child, and they say it violates the Constitution’s promise of equal protection.

“ICWA operates as a unified scheme that places ‘Indian children’ in a disfavored position, depriving them of a placement decision based on their best interests, and instead requiring placements” based on the child’s biology, the individual plaintiffs told the court in their filing.

Non-Indian adoptive parents end up “last in line to adopt an Indian child,” the filing said, behind a member of the child’s extended family, other members of the child’s tribe and other families “from any one of the other 573 Indian tribes, regardless of whether the tribe has any connection to the child.”

Louisiana and Indiana are also among the challengers. The law is being defended by the Biden administration and tribal leaders.

All sides asked the Supreme Court to get involved after the entire U.S. Court of Appeals for the 5th Circuit delivered a 325-page ruling on the law that split evenly on some issues and included opinions from six judges.

In a high-profile 2013 case, the Supreme Court ruled 5 to 4 that the ICWA did not command that a child who became known as “Baby Veronica” must remain with her birth father, a member of a tribe, after the child was given up before birth. But the case did not call for the court to decide the constitutionality of the law.

Native American law has played a larger role in the Supreme Court’s decisions of late.

The court announced in January that it will consider limiting a controversial 2020 decision that greatly expanded the amount of Indian land in Oklahoma and disrupted criminal prosecutions in the area.

But the justices declined the state’s request to overturn its decision in McGirt v. Oklahoma, which sided with tribal leaders in finding that a large portion of land in the eastern part of the state qualifies as an Indian reservation.

The four cases in the fight over the ICWA are consolidated under Haaland v. Brackeen.


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