Why The Supreme Court Decision On A Native American Adoption Law Is So Sensitive

A 40-year-old law enacted to keep Indigenous families together is in danger of being overturned, resurfacing America's ugly legacy of separation.
Demonstrators stand outside of the U.S. Supreme Court, as the court hears arguments over the Indian Child Welfare Act, on Nov. 9, 2022, in Washington. The Supreme Court is wrestling with a challenge to a federal law that gives preference to Native American families in foster care and adoption proceedings of Native children.
Demonstrators stand outside of the U.S. Supreme Court, as the court hears arguments over the Indian Child Welfare Act, on Nov. 9, 2022, in Washington. The Supreme Court is wrestling with a challenge to a federal law that gives preference to Native American families in foster care and adoption proceedings of Native children.
Mariam Zuhaib via Associated Press
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Since it heard oral arguments Nov. 9, the Supreme Court has been weighing the potential overturning of the Indian Child Welfare Act (ICWA) of 1978, a law that gives preference to Native American families regarding Native adoptees and allows tribal nations to have a say in where children from their communities are placed. Although the ICWA 鈥 also known as the Native American Adoption Act 鈥 has received bipartisan support for decades, some believe that its very existence is an example of 鈥渞everse racism,鈥 according to CNN, because it favors Native American families over families of other ethnic groups who want to adopt Native children.

The lawsuit was brought before the Supreme Court by the state of Texas as well as families who have adopted Native children, claiming that the law upholds an unconstitutional racial preference, according to NPR. In one case, a white Dallas couple adopted a Cherokee and Navajo child with tribal approval but were reportedly rejected when they tried to adopt his sister, whose great aunt wanted her to live with a Native American family member instead.

This case and impending decision is extremely complicated because of the historical and cultural context. The Supreme Court鈥檚 decision on whether to strike the ICWA could reverberate in Native communities across the U.S. because its very existence was intended to help keep Native American families together, in contrast to U.S. government policy regarding Native Americans for most of its history.

In the U.S. and Canada, Native American children were forcibly separated from their families for much of the 19th and 20th centuries and were sometimes placed in 鈥渞esidential schools鈥 in an effort to assimilate them into the wider culture. The forceful separation of thousands of children from their families created a system in which Native children became severed from their communities, a trauma that studies have shown led to a high prevalence of depression, substance abuse and suicide attempts.

Today, there is an ugly legacy of that forceful separation: Native children make up a disproportionate amount of those in the foster care system. In Minnesota, 26% of children in foster care identify as American Indian, even though they only make up about 1.1% of that state鈥檚 population. One reason for this is that government agencies often equate poverty with child neglect, making it more likely for Native children to be separated from their families even if there is no actual abuse involved, according to The Washington Post.

Beyond preserving Native culture, several studies have shown adoptees benefit when they are adopted into homes where at least one adoptive parent shares the child鈥檚 identities. Some proponents of the ICWA say that the law is tied to tribal membership and all of the things that being part of that community entails, as opposed to race, which is how its opponents are framing it. Research has suggested that adoptees who are exposed to elements of their birth culture can experience positive impacts on their overall wellbeing, meaning that they benefit from sharing similarities with adoptive parents beyond just the way they look.

The pro-ICWA advocates are attempting to paint a picture of the importance of keeping a Native child鈥檚 ties to their birth ancestry and culture, a right they were denied for so much of American history. Regardless of what the majority-conservative Supreme Court鈥檚 decision on the ICWA will be, it is sure to reverberate loudly all across Indian Country.

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