The Supreme Court on Monday agreed to take up a case over whether a long-standing law intended to stop forced removal of Native Americans from their tribes and families with adoption restrictions is a violation of the Constitution.
The case involves the 1978 Indian Child Welfare Act, which has long been touted by Native American leaders as a vessel for preserving their culture and family values. In essence, the law gives Native American families priority in foster care and adoption when proceedings involve Native American children, placing reporting and other requirements on the states.
A federal district court in April upheld the law and Congress’s authority to enact it. However, judges found some of the law’s provisions unconstitutional, such as preferences for granting Native American children with Native adoptive families and in Native foster care facilities.
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Seven individuals along with the states of Texas, Indiana, and Louisiana sued over provisions in the law, and a federal district court initially sided with the plaintiffs and struck down large portions of the law. But in 2019, a three-judge panel for a federal appeals court voted 2-1 to reverse the district court and uphold the law, which sparked both sides to seek high court review.
Attorneys for the states told the Supreme Court the law formed a “child-custody regime” for Native American children, arguing it is a “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,” according to court filings.
President Joe Biden’s administration requested the high court to review the case on the standpoint that the provisions should have never been struck down.
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Before passage of the 1978 law, between 25% and 35% of Native American children were adopted into homes of non-Native families or foster care homes, including some that attempted to assimilate them.
The Supreme Court won’t hear arguments over the case until the October term, meaning a ruling could come sometime in 2023.
