Supreme Court to review law that gives Native Americans priority in adopting Native American children

On Monday, the U.S. Supreme Court agreed to resolve a dispute regarding the legality of decades-old federal requirements that give Native American families a priority in adopting Native American children. The challenge is being pursued by several non-Native adoptive families as well as the state of Texas.

The justices are set to review the lower court decisions that declared several important sections of the Indian Child Welfare Act of 1978 as unconstitutional.

In addition to several Native American tribes, President Joe Biden’s administration is also defending the law, which seeks to reinforce tribal connections by specifically placing Native American children with their relatives or within their own communities. 

Congress passed the law in 1978 in response to concerns over at-the-time child welfare practices that would often result in the separation of Native American children from their families through either adoption or foster placement, and they would usually be taken to non-Native American homes.

The law set standards on a federal level for removing a child from his or her family and placing them in foster care or up for adoption, including mandating that “preference” be given to members of that child’s family, other members of the same tribe, or “other Indian families.”

Tribes as well as Native American advocacy groups have held that the child welfare law helps preserve their culture and family connections.

Plaintiffs in the case are three couples who looked to adopt or foster Native American children – Chad and Jennifer Brackeen, Nick and Heather Libretti, and Jason and Danielle Clifford – and Altagracia Socorro Hernandez, whose biological Native American child had been adopted by the Librettis.

The group sued in federal Texas court in 2018 along with the states of Texas, Louisiana, and Indiana. They have alleged that the statute racially discriminates against non-Native Americans, which would constitute a violation of the Constitution’s Fifth Amendment promise of equal protection under the law.

The case is set to be heard in the court’s next term, which starts in October. A ruling is expected by June 2023.




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