Supreme Court hears case on Native Americans and adoption

Published: Dec. 2, 2022 at 2:56 PM EST
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WASHINGTON (Gray DC) - Native American families have an advantage in adopting and fostering Indigenous children. But should they? That is the question the U.S. Supreme Court will have to answer after hearing the case, Haaland v. Brackeen.

The Court is weighing the future rights of Indigenous tribes on the heels of Native American Heritage Month. Over the course of our country’s history, different policies systematically removed Native American kids from their families and communities. As a result, in 1978, the Indian Child Welfare Act was put in place to “protect the best interests of Indian Children.”

But now the law, known as ICWA, is in danger of being overturned because of the lawsuit the Supreme Court heard in November alleges it discriminates based on race.

“It favors all Indian persons over all non-Indian persons in in foster and adoptive care. And I don’t think that can be described as anything other than a racial classification,” said Matthew McGill, a lawyer who is representing the non-Native adoptive families presenting the challenge.

McGill represents the plaintiffs, Chad and Jennifer Brackeen, one of several white foster couples who have had to overcome challenges in adopting Indigenous children they were fostering.

“Our clients opened their hearts and their homes to children in need when, frankly, no one else wanted them,” McGill said.

ICWA says a child’s extended family, tribe and other Indigenous families get first dibs to adopt a Native child. If they do not want the child, then non-Native families have an opportunity to adopt.

Leonard Powell, who is representing the native tribes defending the law, says if tribal kids are removed then tribes will no longer exist.

“ICWA has done a lot of great work, but Indian children continue to be removed from their homes at critically disproportionate rates. So it’s a very important law that is still vital,” said Powell.

Powell said the tribes are also concerned, if ICWA is overturned, then tribes could lose their overall sovereignty.

“If some of the most aggressive theories the challengers argue were adopted by the court, the ramifications could be quite broad for tribes and for any country. More generally, those who even are not Indian, but who live in Indian country or visit Indian country could be affected,” Powell said.

The US has 374 treaties with Native Americans and tribes due to a section of federal law. However, the conservative-leaning Court could side with the plaintiffs and give these decisions back to the states.

A ruling is expected in the spring at the earliest.