Supreme Court rules that Native tribes retain precedence over the adoption of Indian children, even over biological parents
The regulation, passed more than 40 years ago, was challenged by non-native families, some of whom could lose custody of already adopted native children.
(Cordon Press)
The Supreme Court voted to uphold a federal law that prioritizes Indian children being placed with Indian families. Even if there are non-Indian families that present suitable conditions and the biological parents are in favor of it.
With 7 votes in favor and 2 against, the Supreme Court upheld the Indian Child Welfare Act (ICWA). The regulations governing the adoption and foster care of indigenous children had been challenged by several families, including the Brackeens, a Texas couple who could lose custody of a 4-year-old girl after successfully adopting her brother. The birth parents are in favor of the adoption, however, the Navajo Nation opposes.
Among other arguments, the plaintiffs -adoptive families, a birth mother and Texas- assert that ICWA discriminates on the basis of race. The Court left this issue to be decided by the lower courts.
It did, however, speak out against the argument that the law exceeds its authority. Adoption is regulated by state regulations, while ICWA was approved by the federal Congress. However, the highest judicial authority in the country recalled that federal laws prevail over state laws.
It also argued that ICWA affects both public and private actors, so it is not an attack by the federal government against state actors.
Certiorari to the United St... by Santiago Adolfo Ospital
Law
The Indian Child Welfare Act (ICWA) was enacted in 1978 to prevent "the removal of Indian children and placement of such children in homes which will reflect the unique values of Indian culture."
To this end, it established "minimum" standards. Among them, 'adoption hierarchies' that prioritize indigenous families or institutions of any tribe, without distinguishing those of the biological parents from the rest. Only then can non-indigenous families or institutions be considered.
The preferences of the tribe are placed even above those of the parents and the child itself. It may even be pronounced after the child is already living in a non-Indian household.
Festivities
"Congress passed the Indian Child Welfare Act (ICWA) to right the extreme historical injustices committed against Native children and their families," wrote Gary Batton, chief of the Choctaw Nation of Oklahoma, in celebrating the ruling.
President Joe Biden also hailed the court decision, "The Indian Child Welfare Act was passed to protect the future of Tribal Nations and promote the best interests of Native children, and it does just that."
He also recalled that before he became president he had supported the law, and that " In the not-so-distant past, Native children were stolen from the arms of the people who loved them."
The Office of Indian Affairs joined in the celebrations of the ruling:
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