The United States Supreme Court heard three hours of arguments in November on the constitutionality of the Indian Child Welfare Act of 1978. This sweeping law makes it difficult to remove American Indian children from their heritage and tribes. The arguments were for four consolidated cases on the matter and could have a wide-ranging impact and likely strike down at least part of the law.
Four justices supporting Native American rights are Neil Gorsuch (who has emerged as a leading proponent for tribal rights) and the three liberal judges on the bench. It is unclear whether a fifth and deciding justice would join these four.
The issues are placement and bias
A ruling on child placement could have an impact on a variety of legal matters surrounding Native American sovereignty. Further complicating the issue, the 1978 law was written after more than a century, where the federal government removed children from their homes and tribes and placed them in institutions that are now seen as abusive or with families with whom the children had no cultural ties.
All modern adoptions prioritize what is in the child’s best interests, but the Native American law added additional protections regarding relationships with the child’s tribe. There were three different protections:
- Children would stay with their tribe unless there were a good reason to the contrary.
- Children go to extended family members rather than others.
- Absent of the first two reasons, children would be placed with other families within the tribe.
Justice Brett Kavanaugh argued that other children of other races do not allow preference to same-race families (i.e., white children to white families, Latino children to Latino families). Justice Amy Coney Barret stated that it treated tribal members as interchangeable guardians.
The states of Texas, Louisiana, and Indiana, and seven people sued the federal government to challenge the law. Their two arguments were:
- Congress lacked the power to enact the law.
- The law violated equal protection principles by drawing distinctions based on race.
A decision could change the rules for all adoptions
Interested parties will no doubt follow this case to its conclusion. Those who wish to discuss how the change could affect their adoption journey can speak with an attorney who handles adoptions.