SCOTUS Considers Overturning Indian Child Welfare Act

Published: Nov. 11, 2022 at 10:58 AM CST
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Washington, D.C. (KSWO) - Tribes are concerned potential changes in the way Native American children are treated in the foster and adoption system could threaten their sovereignty.

”This case is I think as pivotal as the McGirt case,” Cherokee Nation Chief Chuck Hoskins Jr. said after Wednesday’s arguments.

The Indian Child Welfare Act has stood for nearly half a century. Now, it’s being challenged by a family from Texas that said the current system discriminates against them as adoptive parents.

According to the law, there are special rules that apply to native kids in the foster and adoption system.

Instead of placing them with the first available family, there is a pecking order that must be followed to determine placement.

Once the state notifies the child’s tribe of the case, they try and locate a family member that can care for the child first.

If that isn’t possible, they will search for a family in the child’s tribe.

After that, they can search for a placement in other tribes.

If no suitable placement is found, then the child can be placed in a non-native home.

The Brackeen family said, this is unfair to families that aren’t native because it puts them last in line to be parents.

“The classification based on [tribal] citizenship would amount to race discrimination, would essentially be the question of whether citizenship is being used as a proxy for race,” the Brackeen’s attorney Matthew McGill said during arguments.

The state of Texas also said it’s unfair for the state to be forced to abide by this rule without any say in the matter.

“There’s no mediating between tribes and states... it’s the United States saying you, states, shall do this,” Texas solicitor general Judd Stone said to the court on behalf of the state.

But the tribes insist this law is important to make sure when a child loses their parents, they don’t also lose their culture.

“What Congress did was create a system it thought was in the best interests of the child, but not by adopting the ‘state best interests of the child standard’ because it found that that was being applied in a discriminatory way,” attorney Ian Gershengorn said on behalf of the tribes during arguments.

If the law is struck down, tribes could face even greater consequences.

Unlike other ethnic groups in the United States, tribes have a special political status that makes things like tribal citizenship and reservations possible.

If the court thinks that status violates the Equal Protections Act, it could call sovereignty into question.

“My fear is that if that is wiped away, we will go back to an era in which tribes were not allowed to govern themselves, not allowed to effectively that I think any free people would want to do,” Hoskins said.

To protect it, the tribes said they will go to congress.

“If it is struck down, we will be marching across the street and insist that it be repaired. We’re patient people but we’re persistent people and they better rest assured that we will not slow down,” Hoskins said to protestors outside the Supreme Court.

The court is expected to release their opinion on the case in the summer of 2023.