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Supreme Court to Hear Challenge to Law on Adopting Native American Children
By Adam Liptak
Feb. 28, 2022
WASHINGTON — The Supreme Court agreed on Monday to hear a challenge to the constitutionality of the Indian Child Welfare Act of 1978, which makes it hard to remove Native American children from their parents, their tribes and their heritage.
The law, which calls for special procedures in adoptions, was rooted in the sovereignty of Indian nations and a history of abusive child welfare practices involving Native American children. Before the law was enacted, hundreds of thousands of Native children were taken from their homes, sometimes by force, and placed in institutions or with families with no ties to their tribes.
Family courts ordinarily base their decisions on the best interests of the child before them. The 1978 law said that where Native American children are concerned, those interests include protecting their relationships with their tribes.
“The tribe has an interest in the child which is distinct from but on a parity with the interest of the parents,” Justice William J. Brennan Jr. wrote in a 1989 decision, Mississippi Band of Choctaw Indians v. Holyfield. This was, Justice Brennan added, “a relationship that many non-Indians find difficult to understand.”
Legal scholars say that if the rationale for striking down the law survives, it could also threaten laws that guard tribal casinos and water and land rights.
Three states — Texas, Louisiana and Indiana — and seven people 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 equal protection principles by putting a thumb on the legal scale based on the race of one of the parties.
Lawyers for the states told the Supreme Court that the law “creates a child-custody regime for Indian children that is determined by a child’s genetics and ancestry,” adding that “this race-based system is designed to make the adoption and fostering of Indian children by 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 country’s largest, intervened in the case to defend the law. In the Supreme Court, they called the states’ race-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 has been effective but that Native American children remain more likely to be removed from their homes than other children.
We ran into this in AZ when looking into adoption, and like with children who were black or Hispanic, the people of their own heritage/race were in the way of adoptions by people who were white, yet they were NOT stepping up to adopt these children themselves. Seeing sibling groups that had any of the "characteristics" I mentioned above just sit in the foster care system tends to shed reality on the politics from every side on this that gets in the way of children having a permanent home.
"According to the U.S. Department of Health and Human Services (USDHHS), Administration for Children and Families, Children's Bureau, Adoption and Foster Care Analysis and Reporting System (AFCARS) on Sept. 30, 2015, 427,910 children were in foster care, of which 2 percent (10,130) were American Indian. At that same time, 243,060 children were exiting foster care. Two percent (5,249) were American Indian. Reasons for exiting the system included reunification with parents, living with relatives, emancipation, guardianship and transfer to another agency."
The sibling groups are most prevalent in states like AZ and NM, or that is what I saw. They wait.
I disagree with critics of the efforts to overturn the law (I support the law being overturned for what it's worth) that a ruling against the ICWA could endanger the rationale allowing tribal gaming, water rights, etc.
These individuals focus on the racial aspect of the law, which is inherently there as every single tribal government grants membership on account of race (either by requirement to be of descent of another American Indian or black freedman in the case of the Cherokee and Seminole Nations, or via specific blood quantum laws). One of the arguments is that the Constitution prohibits the government (unless they can pass strict scrutiny) from discriminating on account of race, which the ICWA essentially does. But there is a big problem with that, at least with how matters concern Congress. While the Supreme Court has read an equal protection clause into the 5th Amendment, Congress also has the right to regulate trade between the Indian tribes/and between the tribes and states per the Constitutions, so I couldn't see the Supreme Court ruling against efforts by Congress to regulate tribes on this racial aspect. But Congress isn't regulating commerce between states and tribes with the ICWA, but I don't see the Court going that far.
Instead, the Court can (and I suspect will) focus on the more compelling argument that the ICWA interferes with the traditional authority and police powers of the states in the area of family law. Separately, by forcing the states to engage in certain behavior via their state authority, Congress does run into issues with the 14th Amendment's equal protection clause as the state is being required to treat its citizens different only account of what is an inherent racial classification. So the racial argument does come into play, but not from a federal 5th Amendment issue.
This all stems from Baby Veronica' case. And all your posts are about how to GET children not how raise them with no inkling of the purpose of adoption. And btw, prior to Baby Veronica, Indigenous people were an ethnicity not a race...that strategic ploy was conjured up by crooked Anglo lawyers via greedy and needy parents like the Capobiancos (who like you, think adoption is how to GET/shop a kid). How bout helping real parents with advice raising children they've already adopted??? Sorry, you've been rejected as potential adoptive parents but the reasons are becoming obvious with your posts. Picking on Native Americans is a direct result of Russia not allowing US Citizens to adopt their children. Surely, you're aware of this? Both Russia and Native Americans are Nations, as you know.
This all stems from Baby Veronica' case. And all your posts are about how to GET children not how raise them with no inkling of the purpose of adoption. And btw, prior to Baby Veronica, Indigenous people were an ethnicity not a race...that strategic ploy was conjured up by crooked Anglo lawyers via greedy and needy parents like the Capobiancos (who like you, think adoption is how to GET/shop a kid). How bout helping real parents with advice raising children they've already adopted??? Sorry, you've been rejected as potential adoptive parents but the reasons are becoming obvious with your posts. Picking on Native Americans is a direct result of Russia not allowing US Citizens to adopt their children. Surely, you're aware of this? Both Russia and Native Americans are Nations, as you know.
American Indian tribes are "nations," but they are domestic dependent nations, completely subject to regulation by Congress. Russia is not.
Moving on, Indian adoption by non-Indians and has been going on for generations; it was one of the main reasons for the ICWA being passed.
That said, tribal membership is inherently racial, with each tribe that there is requiring some link to an Indian by blood (or a blood descendant of a black Freedman in the case of the Cherokee and Seminole Nations). Yes, membership is also inherently political, but it is politics informed by race. One of the questions before the Supreme Court now is whether this reality violates equal protection principles.
Congratulations! ICWA remains. Folks couldn't go after Russian infants anymore, so they tried to decimate ICWA on the basis of race. Both are nations. It was so obvious Native Americans aren't a race. Blathering about quantum blood was embarrassing. They really didn't understand whitewashing of ethnicities is a thing. Yet the anti-family pseudo adoption businesses tried. They should've just been content with stealing baby Veronica.
Congratulations! ICWA remains. Folks couldn't go after Russian infants anymore, so they tried to decimate ICWA on the basis of race. Both are nations. It was so obvious Native Americans aren't a race. Blathering about quantum blood was embarrassing. They really didn't understand whitewashing of ethnicities is a thing. Yet the anti-family pseudo adoption businesses tried. They should've just been content with stealing baby Veronica.
The only issue that I see with this is if the children remain in foster care long term. That goes for children that are Hispanic or Black also.
I have no idea what "anti-family pseudo adoption business" would be though.
"Brown, who was not married to Veronica’s non-Indian mother when she was conceived, signed a legal document agreeing to put the girl up for adoption and relinquishing his parental rights in exchange for not paying child support."
She was returned to the adoptive family. I am not sure why there ever was a question in this case though. This guy didn't want to pay child support, so he gave up his parental rights, and then he changed his mind and wanted the baby. The mother was not Native American. He fell short of father material.
She was returned to the adoptive family. I am not sure why there ever was a question in this case though. This guy didn't want to pay child support, so he gave up his parental rights, and then he changed his mind and wanted the baby. The mother was not Native American. He fell short of father material.
I agree. The Supreme Court ruled that the act didn't even apply in this case. Unfortunately, post this case, the Bureau of Indian Affairs initiated rulemaking to make such cases covered under the act going forward.
In other news, however, the Supreme Court last week upheld the act against a challenge, though the Court did not rule on claims that the act's placement preferences violate the Constitution's Equal Protection Clause; the Court decided that the parties before it did not have standing to raise the question, so that remains an outstanding point for another day.
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