US Supreme Court considers race-based challenge to Native American adoption law

US Supreme Court considers race-based challenge to Native American adoption law

WASHINGTON, Nov. 9 (Reuters) – The U.S. Supreme Court is set to hear a dispute on Wednesday over the legality of decades-old federal requirements that give preference to Native Americans and members of tribes in adoptions or custody of Native American children.

The judges are set to hear oral arguments to balance an appeal by a group of non-Native American adoptive families and Republican Texas to the Indian Child Welfare Act of 1978 after lower courts declared parts of the law unconstitutional. The administration of Democratic President Joe Biden and many Native American tribes defend the law.

Competitors contend that some preferences racially discriminate against non-Native Americans in violation of the Fifth Amendment Amendment to the U.S. Constitution with equal protection by law.

The case is one of three major race-related disputes that the conservative-majority court has faced since the start of its current nine-month term last month. Others include the rights of black voters in Alabama and the race-conscious student admission policies of Harvard University and the University of North Carolina.

Tribal groups said the adoption challenge is an attack on their sovereignty and warned that a ruling that broadly undermines India’s child welfare law could affect issues beyond children’s welfare, including land rights and economic development.

The Indian Child Welfare Act sought to strengthen tribal ties by setting federal standards for removal and placement in foster care or adoption, including “preference” for members of the child’s extended family, other members of the tribe, or “other Indian families”.

The US Congress passed this law to address a statewide crisis of unjustified removal of Native American children from their families and placement in foster care or adoption by non-Native Americans. In that time, between 25% and 35% of all Native American children were removed in states with large Native American populations, according to court papers.

The lawsuit, first filed in 2017, was brought by Texans and three non-Native American families who sought to adopt or foster Native American children. They include a Texan couple, Jennifer and Chad Bracken, who in 2018 adopted a child whose mother was a member of the Navajo Nation. They are currently engaged in a battle with the tribe as they seek to adopt the boy’s half-sister.

Texas said in court papers that the Indian Child Welfare Act “establishes a clear and unapologetic system of racial discrimination”.

Texas added: “Although acknowledged as a supposed effort to ensure that Western racial norms are not used to break up an Indian family, these provisions often prevent the child’s removal from a dangerous environment, and justify physical abuse sufficient to remove a non-Indian child.”

The plaintiffs also said that the law unconstitutionally directed the actions of state agencies in matters of adoption.

A diverse coalition of 24 states — including Alaska, Arizona and California — and the District of Columbia back the Biden administration in the case, saying in a legal filing that the law “worked largely as Congress wanted.”

Defenders of the law have argued that its procedures that distinguish between “Indians and non-Indians” are valid under the Constitution and case law of the Supreme Court.

“The Constitution itself singles out Indians as an appropriate subject for separate legislation, and this court has held in an unbroken chain of precedent that such classifications are political, not racial,” the Department of Justice said in a statement.

Tribes told the Supreme Court that the law was still necessary because Native American children were still disproportionately represented in the foster care of the state.

A federal judge ruled in favor of the competitors in 2018. Last year, 16 judges on the New Orleans-based Fifth U.S. Court of Appeals narrowed that ruling, but confirmed the invalidation of certain parts of the law.

The Supreme Court is due to issue its decision at the end of June.

Reporting from Andrew Chung. Editing by Will Dunham

Our Standards: Thomson Reuters Trust Principles.

Nate Raymond

Thomson Reuters

Nate Raymond Report on Federal Judiciary and Litigation. He can be contacted at nate.raymond@thomsonreuters.com.

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