The Supreme Court is considering a challenge to the Indigenous Child Welfare Act

WASHINGTON (AP) – The Supreme Court is hearing arguments Wednesday on a challenge to a federal law that gives Native American families priority in foster care and adoption proceedings for Native children.

India’s Child Welfare Act, passed in 1978, was meant to address concerns that native children were being separated from their families and, too often, placed in non-native homes.

Tribal leaders have long championed it as a means of preserving their families, traditions and culture.

But white families seeking to adopt Native children are among the challengers who say the law is impermissibly based on race and also prevents states from considering the children’s best interests.

The fate of the law rests in the hands of the court, which has made race the focus of its current term, in cases involving congressional redistricting and affirmative action in college admissions. Two members of the court, Chief Justice John Roberts and Justice Amy Coney Barrett, are also parents of adopted children.

The entire 5th U.S. Circuit Court of Appeals struck down parts of the law last year, including preferences for placing Native children with Native adoptive families and in Native foster homes. It also said that Congress had overstepped its authority by imposing its will on state officials in matters of adoption.

But the 5th Circuit also ruled that the law is generally based on the political relationship between tribes and the U.S. government, not race.

The tribes and the Biden administration appealed some parts of the lower court’s ruling, while white families and Texas, allied with those families, appealed others.

More than three-quarters of the nation’s 574 federally recognized tribes have asked the high court to fully uphold the law, along with tribal organizations. They fear widespread repercussions if the court tries to destroy the tribes’ status as political sovereigns.

Almost two dozen state attorneys from across the political spectrum submitted a submission in support of the law. Some of these states have codified the federal law into their own state laws.

A ruling in favor of the families and Texas could undermine the 1978 law and, the tribes fear, have broader effects on their ability to govern themselves.

When child welfare authorities remove Native children from their homes, the law requires states to notify tribes and seek placement with the child’s extended family, members of the child’s tribe, or other Native American families.

All of the children who were at one time involved in the current case are enrolled or could be enrolled as Navajo, Cherokee, White Earth Band of Ojibwe, and Ysleta del Sur Pueblo. Some of the adoptions have been completed, while some are still contested.

Before the Indian Child Welfare Act was enacted, between 25% and 35% of Native American children were removed from their homes and placed with adoptive families, in foster care, or in institutions. Most were placed with white families or in boarding schools in an attempt to assimilate them.


Associated Press writer Felicia Fonseca in Flagstaff, Arizona contributed to this report.

The Latest

To Top