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Supreme Court Agrees To Consider Native American Children Adoption Law

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U.S. Supreme Court Justice Stephen Breyer Announces His Retirement WASHINGTON, DC - JANUARY 26: The U.S. Supreme Court building on the day it was reported that Associate Justice Stephen Breyer would soon retire on January 26, 2022 in Washington, DC. Appointed by President Bill Clinton, Breyer has been on the court since 1994. His retirement creates an opportunity for President Joe Biden, who has promised to nominate a Black woman for his first pick to the highest court in the country. (Photo by Chip Somodevilla/Getty Images) Chip Somodevilla / Staff
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On Monday, the United States Supreme Court agreed to consider a law concerning the adoption of Native American children. 

The law at issue is the 1978 Indian Child Welfare Act (ICWA), which, along with other items, prioritizes placing Indian children with family members, other Native Americans, or a tribe. The intention of the law was to end previous actions wherein hundreds of thousands of Native American children were taken from their homes by adoption agencies and put in group areas or given to white families. 

According to The New York Times, Texas, Louisiana, and Indiana, as well as seven individuals, sued the federal government over the law.

Attorneys for the states reportedly told the high court that the law “creates a child-custody regime for Indian children that is determined by a child’s genetics and ancestry,” adding that “this race-based system is designed to make the adoption and fostering of Indian children by non-Indian families a last resort through various legal mechanisms that play favorites based on race.”

Some Native American groups are pushing for the law to remain in place. 

“We know the importance of keeping our children connected with their families, communities, and heritage. ICWA has proven itself as the gold standard of child welfare law, which is why both Republican and Democratic administrations, tribes and tribal organizations, and child welfare experts continue to defend it,” Cherokee Nation Principal Chief Chuck Hoskin Jr. and three other tribal leaders said in a statement. “We will never accept a return to a time when our children were forcibly removed from our communities, and look forward to fighting for ICWA before the Court.”

Multiple tribes, including the Cherokee and the Navajo, became involved to defend the law. They wrote that the 1978 law “is tied to membership in Indian tribes — which is about politics, not race.”

The federal government and the tribes also reportedly informed the Supreme Court that the law has worked, but Native American kids are still more likely to be taken from their homes than other children. 

Texas said in its brief that this was a result of societal factors. “The United States and tribes make no effort,” attorneys for the state wrote in a brief, per The Times, “to disprove the common-sense conclusion that today, the high numbers of adoptions and fostering of Indian children are often a sign, not the cause, of the high risk of neglect, violence, gang activity, drug abuse, alcoholism and suicide among Indian children.”

The U.S. Court of Appeals for the 5th Circuit upheld part of a lower court’s ruling, but also reversed part of it. The appeals court “ruled that the provisions violate ([…]among other things) the 10th Amendment because they ‘commandeer’ – that is, impose duties on – the states,” per SCOTUS Blog.

According to Ballotpedia, Debra Haaland officially appealed to the Supreme Court in September, in her official role as the Secretary of the Interior regarding Haaland v. Brackeen. Both sides have requested that the Supreme Court get involved.

Haaland v. Brackeen is grouped together for one hour of oral argument with Cherokee Nation v. BrackeenTexas v. Haaland, and Brackeen v. Haaland. The high court will hear the arguments in the coming term, which starts in October. 

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