SCOTUS Hears Native American Adoption Case

The Supreme Court of the United States recently heard arguments in a case that challenged a law that is decades old regarding Native American adoptions but also touches on far-reaching questions of Indigenous rights in the U.S.

Similar to Canada, Native American children in the United States were removed from their biological parents and placed with non-Indigenous families or in boarding schools as part of a forced assimilation policy.

In 1978, Congress sought to end the practice by passing the Indian Child Welfare Act (ICWA). It solidified the standards for removing Native American children from their families and required tribal families to be offered priority for adoptions and placements.

Families limited by the ICWA and the Republican-led state of Texas filed a legal challenge to the Act under the U.S. Constitution’s 14th Amendment, limiting the differentiation based on race between citizens.

“ICWA violates the Constitution’s equal-protection guarantee by categorizing children based on genetics and ancestry and potential adoptive parents based on their race,” said the Texas court filing.

Many Native American tribes, supported by President Joe Biden and his administration and the ACLU, have said that the law is based on Indigenous groups’ sovereign rights, not a race.

Under American laws, Native American tribes are given special status with their court systems and legal jurisdictions. The SCOTUS has decided to intervene in the case after lower courts issued differing opinions and are expected to issue a final ruling in the spring.

While several members of the court’s conservative majority have expressed some skepticism about the legal basis for the law, Neil Gorsuch has a track record of joining with the liberal minority on issues concerning Native Americans.

The case’s immediate impact on the ICWA could have a direct effect and “revolutionary, catastrophic consequences,” said Joseph Singer, Harvard law professor.

“There are hundreds of treaties with Indian nations that are still in effect,” said Singer. “If you can’t treat Indian nations as sovereigns if you can’t treat Indians differently from non-Indians, does that make all those treaties unconstitutional?”

Family faces the loss of an adopted child

In the Texas case, a family is at risk of losing one of their two adopted Native American children because it alleges the federal law gives “race-based” priority to tribes in custody disputes.

In Haaland v. Brackeen, litigation from multiple states, including Texas, and a handful of other families has been combined. Chad and Jennifer Brackeen live in Texas with their children. Tribes defending the law warn that if the Brackeens win the case, it could undermine their sovereignty and have far-reaching consequences.

The Indian Child Welfare Act is a 1970s law meant to protect Native American children in state custody and is at the center of the controversy.

There are Americans out there who are eager to help these children out, and the Indian Child Welfare Act says they are not allowed to because their skin is the wrong color,” said Timothy Sandefur, adjunct scholar at Cato Institute.