A recent case could affect Native American adoptions
Nov. 29, 2022
The United States Supreme Court recently heard a case that could potentially overturn the Indian Child Welfare Act, which gives preferences to Native Americans when adopting Native American children. Here to explain more about the case and what this could mean is ASU Law Professor, Trevor Reed.
“The Indian Child Welfare Act was specifically passed to fix a problem that was happening in Indian Country. By the 1970s, we were seeing a huge exodus of tribal children from tribal lands, and part of the problem had to do with state court proceedings dealing with child custody issues, adoption proceedings, foster care proceedings, and children were being removed at rates like 25-35%, which was pretty alarming. In some states, for example, the rate of Native American children being removed from tribal lands is 22 times the amount of other population groups. So congress stepped in trying to fix the problem and it created a package of rights that Native families could use to prevent the removal of their children, and to balance out some of these efforts that were underway,” Reed said.
On tribal land, tribal courts have jurisdiction over child custody cases. State courts have jurisdiction off of tribal lands, Reed said.
“There are seven different families that are challenging the constitutionality of this law,” Reed said.
One of the big arguments against this law is that it promotes reverse racism and that the Constitution does not allow this, Reed said. People believe this law gives Congress too much power.
Another question about this law is whether or not it violates equal protection guarantees.
“That is one of the biggest questions this case is trying to raise. Should we have a law that actually gives preference to Native Americans as opposed to other populations? If you have a white family that wants to adopt a Native American child, should they be last in line to do that? Does that violate some of our foundational principles?” Reed said.
Respondents are saying that Indigenous Peoples are more of a political category, like Tribal Nations. They say those can be treated differently and can deserve special protections because some even pre-date the Constitution, according to Reed.