The Indian Child Welfare Act (ICWA) has provided federal protections for Native American adoptees and foster children in Indian Country for more than 40 years. The law has been upheld in dozens of court decisions. But legal pressures have increased in recent years and it is now facing its most significant court challenge thus far.

Research shows that before ICWA was enacted in 1978, up to one-third of Native American children were being taken from their homes by private and state agencies, including church-run programs, and placed with mostly white families or in boarding schools that attempted to assimilate them. The law has wide support in Indian Country, as well as among many non-Natives.

But the U.S. Supreme Court has been asked to review a recent case that centers on whether Native Americans should receive preference in foster care and adoption proceedings involving Native children, and whether states should be required to follow certain ICWA guidelines.

The petition of the Supreme Court stems from a previous decision from a U.S. District Court in Texas that sided with the states of Texas, Louisiana, Indiana and seven individuals who argued that ICWA was unconstitutional because it was racially motivated and violates the Equal Protection Clause of the Constitution. The U.S. Fifth Circuit Court of Appeals disagreed with the ruling, but then an en banc ruling by the same court resulted in a sharply divided and complex decision on the law.

Even though the law and Congress’ authority to enact it was upheld, the latest decision invalidated some of ICWA’s placement preferences. The court also ruled that some of the law’s provisions unconstitutionally control the duties of state officials in adoption matters.

Multiple petitions were filed Sept. 3 for the Supreme Court to review the latest case. The federal government – specifically the Interior Department – and tribal defendants, including the Quinault Nation, Morongo Band of Mission Indians, Oneida Nation of Wisconsin and Cherokee Nation, have asked the Supreme Court to determine whether the plaintiffs had standing to challenge the law’s placement preferences.

The state of Texas and private parties to the case (foster and adoptive families) also filed petitions requesting a review.
The National Indian Child Welfare Association (NICWA) has been taking steps to file amicus briefs by supporters of the law, which are due in early October. Amicus briefs allow entities that have a stake in the litigation to provide information to the court on particular issues they believe are important to the case.

NICWA’s executive director Sarah Kastelic said the ultimate goal of the state of Texas and the private parties in the case – non-Native foster parents who want to adopt Native children – is to dismantle ICWA.

NICWA said the Supreme Court is expected to render a decision about whether they will take the case under review sometime near the end of October.

“We think it’s very likely the Supreme Court will take the case,” Kastelic said.

She said if a review is granted a ruling could come as early 2022.

More is at nicwa.org.