Supreme Court to Hear Challenge to Law on Adopting Native American Children

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WASHINGTON — The Supreme Court agreed on Monday to hear a challenge to the constitutionality of the Indian Child Welfare Act of 1978, which makes it hard to remove Native American children from their parents, their tribes and their heritage.

The law, which calls for special procedures in adoptions, was rooted in the sovereignty of Indian nations and a history of abusive child welfare practices involving Indian children.

Family courts ordinarily base their decisions on the best interests of the child before them. But the 1978 law says other factors must be considered.

“The tribe has an interest in the child which is distinct from but on a parity with the interest of the parents,” Justice William J. Brennan Jr. wrote in a 1989 decision, Mississippi Band of Choctaw Indians v. Holyfield. This was, Justice Brennan added, “a relationship that many non-Indians find difficult to understand.”

Three states — Texas, Louisiana and Indiana — and seven people sued the federal government to challenge the law, saying it was an impermissible intrusion into matters traditionally governed by state law and a violation of equal protection principles by putting a thumb on the legal scale based on the race of one of the parties.

Lawyers for the states told the Supreme Court that the law “creates a child-custody regime for Indian children that is determined by a child’s genetics and ancestry,” adding that “this 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.”

Several tribes intervened in the case to defend the law. In the Supreme Court, they called the states’ race-discrimination argument inflammatory. The 1978 law, they wrote, “is tied to membership in Indian Tribes — which is about politics, not race.”

The challengers mostly prevailed before a federal trial court and a divided three-judge panel of the United States Court of Appeals for the Fifth Circuit, in New Orleans. The full Fifth Circuit reheard the case, issuing a fractured decision that caused both sides to seek Supreme Court review.

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