The Supreme Court began a new session this week and its docket includes a Texas case challenging the Indian Child Welfare Act.
The 1978 law led to protections for Native families in child welfare and adoption cases. It was meant to address the disproportionate number of native children in foster care and historic attempts to erase Native cultures. Opponents say the law can delay getting children into safe homes and is unconstitutional because it gives preferential treatment based on race.
Shannon Smith says the law is used nearly every day here in Minnesota. She’s an attorney and executive director of the ICWA Law Center in Minneapolis, which represents about 200 Native families a year and signed onto an amicus brief in the case.
Attorney General Keith Ellison and Minnesota members of Congress Amy Klobuchar, Tina Smith, Betty McCollum and Angie Craig have also signed amicus briefs in the case.
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Attorney Smith joined All Things Considered Wednesday to talk about how the law is used in Minnesota and what a ruling siding with the plaintiff would mean for a similar state law.
Click play on the audio player above to hear the conversation, or read a transcript of it below. It has been lightly edited for clarity and length.
What specific protections were put into place under the Indian Child Welfare Act?
It allows tribes to be parties to proceedings, provides services in order to strengthen families, and recognizes, in regards to placement preferences, the importance of looking at family and really honoring those connections.
Let's say a child is in danger and maybe the best place for them, at least temporarily, would not be with their family, but in a foster situation or a home care situation. Have you seen that happen too?
Every day, and the ICWA allows for that. There is a provision for emergency placement.
How successful has ICWA been in reversing the disproportionate number of Native kids in foster care?
In Minnesota, Indian children continue to disproportionately be placed out of home. In 2020, the numbers were something like 16.4 percent more Indian children placed out of home than non-Indian children. So the numbers continue to be high.
I think an important piece of it is just recognizing, historically, the impact of boarding schools on Native families, recognizing practices of adoption through the Adoption Project and how many families were torn apart. And so that historical trauma, that generational trauma and individual trauma is something that the Indian Child Welfare Act addresses.
This case will be known as Haaland v. Brackeen. What is the central argument in it?
The central argument is that the Indian Child Welfare Act made it more difficult for some [non-Native] families to adopt. I think one of the really interesting pieces is that two of the families involved, in fact, have adopted the children that were kind of at the center of the Texas litigation. And the Indian Child Welfare Act worked in a way where there was ultimately tribal support for the adoptions.
The Indian Child Welfare Act does not dictate any certain placement. It does provide a process, a procedure and absolutely recognizes that tribes have a role in making these decisions.
Am I right that the plaintiffs in the Texas case are arguing that it is unconstitutional?
You are correct. Yes.
And so what is the argument in your amicus brief supporting the law's constitutionality?
So there are several arguments that they make. I think one that is absolutely at the center is that it is a race-based law and, as such, it's a violation of the Equal Protection Clause.
The legal precedent and the history of Indian law in this country indicates that really the classification of someone as a tribal citizen is, in fact, not a race-base distinction, but a political affiliation.
And what's behind that? The sovereignty of tribal nations?
Absolutely. The federal government has a duty to honor and to protect that sovereignty, and to protect the existence of tribal nations moving forward. And so it's not based on race; it's really based on that child being a tribal citizen.
Minnesota, I understand, has its own state law on this issue. So tell us what would happen here in Minnesota if the justices side with the [adopting families] in this case?
Minnesota has the Minnesota Indian Family Preservation Act. And regardless of what federal policy is, this is a policy of the state and a policy of the tribes to make sure that Indian children's identity is honored in order to ensure their best interest.