Native American children's protection against adoption by non-Indian families is before the Supreme Court

The Supreme Court is about to hear arguments about the constitutionality of a 1978 law enacted to protect Native American children in the U.S. and strengthen their families.

That law, the Indian Child Welfare Act, was originally passed by Congress in response to requests from tribal leaders and other advocates for Native Americans to stop states from removing Indian children from their families.

Now, in the case before the Supreme Court, non-Indians seeking to adopt or foster Indian children have challenged provisions of the law. The non-Indians say the law illegally discriminates against the Indian children based on their race and tells state officials what to do. As a federal Indian law scholar and the mother to two Indian children, I know that Indian status is a political, not a racial, designation.

The case threatens to reverse the social and health benefits experienced by Native children when raised in their tribal cultures. It could also limit Congress’ ability to enact laws affecting tribal governments and their citizens.

A Native American child welfare crisis

In the 1970s, Native American tribes sought help from Congress because many state governments were removing American Indian children from their families and communities and placing them in homes with white families. State social welfare agencies often permanently removed children from Native families without evidence of harm or neglect because they did not understand Native cultural and child-rearing practices. At times, social workers even used force to remove the children from their families.

This happened to between 25% and 35% of all Native American children, and 90% of those removed were sent to be raised by non-Indian families.

In Minnesota, for instance, the state took Indian children from their families to be placed into foster care or for permanent adoption at five times the rate they did non-Indian children. In South Dakota and Montana, Indian children were 13 times as likely to be placed in foster care than non-Indian children. And in Washington state, the adoption rate was 19 times as high and the foster care placement rate 10 times as high for Indian children than non-Indians.

As a result of these policies and practices, many Indian adults and children suffer trauma because of the loss of connections with their families and their cultures. This forced separation led many of them to struggle with addiction and violence throughout their lives.

Some Indian children spent years trying to recover their Indian identities and reconnect with their tribal communities. Many others never made it home to see their families or communities again.

It was this situation that the Indian Child Welfare Act aimed to address.