Chief Chuck Hoskin Jr. and other tribal leaders continue to vocalize their support for the law. courtesy

Supreme Court reconsiders Native American adoption law

A law that gives adoption priority of Native American children to Native Americans is under debate.

The United States Supreme Court is currently taking into consideration once again the 1978 Indian Child Welfare Act (ICWA) in Brackeen v. Haaland. This act gives priority to Native American children being placed with other members of their or another tribe if they cannot be adopted by their own family members. Native American groups have defended this law claiming its necessity in order to stop past abuses incurred by the removal of Native American children from their home and placed with white families or groups.

Principal Chief Chuck Hoskin Jr. and leaders of other tribes have been very vocal about the law, stating, “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. 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.”

Non-Native American individuals have been challenging this law, saying that parents outside these ethnic and cultural groups are “last in line to adopt an Indian child,” and that the “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 [on the basis of biology].” They are claiming that the law does not have the best intentions of the child in mind because it favors even a tribal member that is not of the same tribe of the child over non-Native American adoptive parents.

Texas is leading the charge in the opposition to the ICWA, followed by Indiana and Louisiana, while the Biden administration and leaders of many tribes are in defense of the law. The Supreme Court became involved after a ruling on the law split some issues evenly and six different judges had differing opinions on this law. This is not the first time that the law has been the subject of controversy. In 2013 there was a court ruling that a child known as “Baby Veronica” would not be required by ICWA to remain with her Native American birth father despite him being a tribal member, however the case never made a decision in regards to the law’s constitutionality.

Sarah Kastelic from the National Indian Child Welfare Association has said that the provisions in opposition for being unconstitutional are actually beneficial for Native and non-Native American children and families alike. “I think overall we see more and more research that shows that these kinds of practices are really in the best interests of not just Native children but all children.” Tribal leaders advocating for the law have still said however that a re-hearing of certain aspects of the law is welcome as it reevaluates the relevancy of the law for future generations.

In 2019, the ICWA was reaffirmed by the Fifth Circuit Court of Appeals as being constitutional. The outcome of Brackeen v. Haaland could be game-changing with far-reaching effects for Native as well as non-Native Americans.

Post Author: Logan Guthrie