The Supreme Court agreed on Monday to hear a challenge to the constitutionality of the Indian Child Welfare Act of 1978, which makes it hard to remove Native American children from their parents, their tribes and their heritage. The law, which calls for special procedures in adoptions, was rooted in the sovereignty of Indian nations and a history of abusive child welfare practices involving Native American children. Before the law was enacted, hundreds of thousands of Native children were taken from their homes, sometimes by force, and placed in institutions or with families with no ties to their tribes.
Family courts ordinarily base their decisions on the best interests of the child before them. The 1978 law said that where Native American children are concerned, those interests include protecting their relationships with their tribes. Three states—Texas, Louisiana and Indiana—and seven people sued the federal government to challenge the law, saying it was an impermissible intrusion into matters traditionally governed by state law and a violation of equal protection principles by putting a thumb on the legal scale based on the race of one of the parties. Several tribes, including the Cherokee and the Navajo, two of the country’s largest, intervened in the case to defend the law. In the Supreme Court, they called the states’ race-discrimination argument inflammatory. The 1978 law, they wrote, “is tied to membership in Indian tribes — which is about politics, not race.” The tribes and the federal government told the court that the law has been effective but that Native American children remain more likely to be removed from their homes than other children.
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