A Supreme Court decision Thursday preserved the system that gives preference to Native American families in foster care and adoption proceedings of Native children.
In doing so, the court rejected attacks from some Republican-led states and white families who argued that the Indian Child Welfare Act was based on race. The law was enacted in 1978 to address concerns that Native children were being separated from their families and frequently placed in non-Native homes.
Rebecca Nagle – a writer, journalist, host of the podcast “This Land” and a citizen of the Cherokee Nation – said the welfare act, often shortened to ICWA, was passed after a national survey found that about a third of native children had been removed from their families and their tribes.
“ICWA is basically a set of guardrails,” she said. “When a native kid enters either foster care or private adoption, it makes it harder to separate that child from their family and from their tribe.”
The lawsuit being heard before the Supreme Court started in Texas, where a white evangelical couple from the suburbs of Dallas wanted to adopt a native child they had fostered. The couple ended up winning custody and adopting that child, Nagle said.
“What is weird about the lawsuit is that the same week that they found out that they were going to win custody of this child, they filed a federal lawsuit saying that ICWA violated their constitutional rights,” she said. “The corporate law firm that swooped in to help them in this family court case had a long-standing relationship with the solicitor general of Texas and the Texas attorney general. And so that corporate law firm ropes Texas into the case, and they filed the federal lawsuit together.”
Part of the reason the Supreme Court ruled against the family in this case was because of the question of standing, Nagle said.
“You can’t just file a lawsuit because you don’t like a law. There has to be an existing controversy,” she said. “And all of the custody cases in this case had long been settled. And so, no, nothing happens, no matter how the Supreme Court rules. And that’s not how lawsuits are supposed to work.”
Nagle said the court also ruled that the ICWA was not a violation of congressional authority.
“One of the big arguments that Texas and the plaintiffs tried to make is that Congress doesn’t have the authority to pass a law like ICWA in the first place. There are a few different ways that they tried to get at that argument. Some were kind of about states’ rights and child welfare, and others were just about where in the Constitution does Congress draw authority to pass laws in the arena of what people call ‘federal Indian law,’” she said. “The court ruled against the plaintiffs and upheld that, you know, congressional authority in that area is very broad.”
Nagle said Indigenous groups and leaders were relieved with the result.
“What was at stake in this case is not only a really important law to keep native children with their families, but because of the broad and radical arguments the plaintiffs forward, really the foundation of tribal sovereignty,” Nagle said. “It’s hard to overstate how much was at stake and how devastating a loss could have been. So I think for that to be avoided is a huge sense of relief for a lot of tribes and native leaders.”
Nagle said studies have shown that when the ICWA is followed, it improves outcomes for Indigenous kids.
“When it is followed, not only are native kids more likely to stay with their families, but they’re also just more likely to have better outcomes that we want for foster kids more generally,” she said. “So higher rates of reunification and also taking less time to get to what people call permanency, or less time (until they get) into that home where they’ll stay.”