WASHINGTON. On Monday, the Supreme Court agreed to hear a constitutionality challenge. Indian Child Welfare Act 1978making it difficult to separate Native American children from their parents, their tribes, and their heritage.
The law, which requires special adoption procedures, is based on the sovereignty of Indian nations and a history of cruel child protection practices against Indian children.
Family courts generally base their decisions on the best interests of the child before them. But the 1978 law says there are other factors to consider.
“The tribe has an interest in the child that is different from the interests of the parents, but is on par with the interests of the parents,” Judge William J. Brennan, Jr. wrote in a 1989 decision. Mississippi Gang of Choctaw Indians vs. Holyfield. Justice Brennan added that it was “a relationship that many non-Indians find difficult to understand.”
Three states – Texas, Louisiana and Indiana – and seven people sued the federal government to challenge the law, saying it was an unacceptable intrusion into matters traditionally governed by state law and a violation of equal protection principles. on the race of one of the parties.
State lawyers told the Supreme Court that the law “establishes a child custody regime for Indian children that is determined by the child’s genetics and ancestry,” adding that “this race-based system is designed to ensure that the adoption and rearing of Indian children by non-Indian families in last resort through various legal mechanisms that select favorites on the basis of race.”
Several tribes stepped in to protect the law. In the Supreme Court, they called the states’ argument about racial discrimination inflammatory. They wrote that the 1978 law “is tied to membership in Indian tribes as far as politics, not race.”
The challengers largely prevailed before a federal trial court and a divided three-judge panel of the United States Court of Appeals for the Fifth Circuit in New Orleans. The full Fifth Circuit retried the case, issuing a piecemeal decision that led both sides to seek a retrial in the Supreme Court.