Supreme Court hears arguments in Texas-backed case against Indian Child Welfare Act

The 1978 measure was enacted to protect Native American children from being separated from their communities.

By Raul AlonzoNovember 22, 2022 10:34 am, ,

Recently the U.S. Supreme Court heard arguments in a case with roots in Texas that could deem a longstanding measure meant to protect Native American children as unconstitutional.

The case, Haaland v. Brackeen, centers on a Fort Worth couple seeking to adopt a girl born to a Navajo mother. The couple had previously adopted the girl’s brother after a lengthy legal process, but now the tribe and great aunt are protesting the girl’s attempted adoption by the family.

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The state of Texas is backing the Fort Worth couple, as well as other adoptive families challenging the 1978 Indian Child Welfare Act, which gives preference to extended family, members of a tribe, and then other tribes in cases concerning Native American children in the foster system. Aside from ruling against the measure, some scholars are concerned the case could impact a tribe’s status as a political entity.

Kate Fort, director of the Indian Law Clinic at Michigan State University College of Law, joined the Texas Standard to talk about the case and its implications. Listen to the story above or read the transcript below.

This transcript has been edited lightly for clarity:

Texas Standard: Tell us a little bit more about this law: the Indian Child Welfare Act. What prompted Congress to take it up back in the seventies?

Kate Fort: Yes. During the 1970s, a number of native activists, tribes and nonprofits came to Congress and explained what was happening on the ground, which was the wholesale removal of Native children from their families. 25% to 35% of all Native children were removed from their families and placed with non-Native, primarily non-Native, foster families.

Tell us a little bit about the provisions when it comes to placement for foster kids who come from Native American parents. How does that actually work? 

Yes, when a Native child or an Indian child is removed from the home, the placement preferences state in foster care that they need to be placed near their family in a home most resembling a family home, and that they should be going with their extended family first, if at all possible, followed by a foster home that their Indian tribe, either license specifies or agrees, will be a good fit. After that, they may be placed in a home that the state licensed that is an Indian foster home. And then after that, there is a provision for group homes that are run by Indian tribes, though that is rarely used. In all cases, there is what we call a “good cause provision.” So if the court finds there is good cause to deviate from those enumerated preferences, you get the opportunity to place the child somewhere else.

My understanding is the foster families are making an argument that, because of their race, they are put at the end of the line when it comes to adoption. 

So the adoptive placement preferences are separate from the foster care placement preferences, and I just would say that this is not a racial preference. Indian children are citizens or eligible for citizenship in their federally-recognized tribe, and this only makes sure that they’re placed with their family or their tribe, which we know leads to better outcomes for children who have suffered trauma.

There’s a standard that’s often used in family law, and I’m sure you’re aware of “best interest of the child” standard. It’s my understanding that in the arguments before the Supreme Court, the defendants acknowledged that there is not a such a best interest of child standard in the Indian Child Welfare Act. Is that a concern?

No. Congress stated in the act that the Indian Child Welfare Act is in Indian children’s best interests, and I think there’s a real misunderstanding about the way that standard operates in child welfare proceedings. Whether you have an equal case or not, the best interests of the child is considered at every hearing, either explicitly or implicitly. For Native children, that just means that the law requires courts include assessments of their best interests. That includes their connection to culture, language, their tribal community. No one is ignoring the best interests of Native children in these proceedings.

What are the implications should the ICWA be ruled unconstitutional? I mean, there has been this talk that Native American tribal status could be affected. How so? 

Yes, unfortunately, when Texas and the foster families brought this case, they brought a very wide-ranging claim that doesn’t just affect ICWA, but their arguments could lead to arguments about tribes not being political entities or that Congress’ power to legislate on behalf of tribes is limited in ways that we’ve never seen before any holdings, and that way could limit tribal sovereignty considerably.

I presume at this point it’s just now a waiting game for the Supreme Court to decide. They would have to come up with a decision or would be expected to come up with a decision by June. 

Yes, the term ends at the end of June. And so we just sit and wait now.

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