The federal Indian Child Welfare Act, known as ICWA, became law in 1978 in response to what was called a crisis of Native children being removed from their families by social service agencies. Two studies found 25 to 35 percent of all American Indian children were taken from their families and 90 percent were placed with white families.
In the case now before the U.S. Supreme Court, non-Native families wanting to adopt Native children are challenging provisions of the federal law designed to protect Native family and cultural connections.
Among other things, the law prioritizes where Native children should be placed if they are adopted, the first priority is extended family, followed by someone in their tribe or another Native family.
The plaintiffs in the Brackeen case argue the federal government is unlawfully imposing requirements on states. They also contend that protections for American Indian children are based on an unconstitutional racial classification, said Mitchell Hamline School of Law professor, and Director of the Native American Law and Sovereignty Institute, Angelique EagleWoman.
Grow the Future of Public Media
MPR News is supported by Members. Gifts from individuals power everything you find here. Make a gift of any amount today to become a Member!
But, American Indians have always had political, not racial status as members of sovereign tribal nations who have treaty relationships with the U.S. government, said EagleWoman.
“For hundreds of years there have been U.S. Supreme Court cases that recognize the tribal nation status and the political status of tribal citizens.”
Possible broad implications
Some worry a Supreme Court ruling in the Brackeen case could have broad implications for the sovereign status of American Indian tribes.
But EagleWoman expects the Supreme Court decision to be narrow.
“In my view, the U.S Supreme Court may carve out the third placement preference. They may tweak some of the ways in which states are required to do record keeping for Indian Child Welfare Act cases,” she said.
“I do not foresee a sweeping decision or a change to the Tribal nation U.S. relationship in a decision coming out of the Brackeen case. I think that is a step much too far for any U.S. Supreme Court to take.”
The Court is expected to release its decision by the end of June.
‘Gold standard of protection’
Uncertainty about the future of ICWA brought urgency to legislative efforts this year to strengthen the Minnesota Indian Family Preservation Act or MIFPA.
Lawmakers in both houses passed the legislation and Governor Walz is expected to sign it.
“MIFPA legislation creates basically the gold standard of protection for our native kids,” said State Senator Mary Kunesh.
Kunesh said it was critical to clarify parts of the state law that relied on the federal law for guidance.
“We removed any reference to ICWA, so should ICWA go away or be amended in a way that does not fully protect our kids, Minnesota has those protections in place,” she said.
But the state needs to do more said Kunesh.
Minnesota still has some of the greatest racial disparities in the country for out of home placement of children.
American Indian children are 16 times more likely than white children to experience out of home care, according to a 2020 report by the the Minnesota Department of Human Services.
Why that disparity exists is a complicated question according to people involved with the system on a daily basis.
“I have been doing this work in Minnesota for over 20 years and I will say that that is a question that keeps me up at night,” said Shannon Smith, executive director of the ICWA Law Center in Minneapolis.
“Minnesota is often lifted up on the national stage as a place where all these awesome things are going on and then it's always kind of that dagger of like, ‘and then we have our numbers,’” she said.
The numbers also show disparity in how counties enforce the laws designed to keep Native children close to their families and culture.
Counties out of compliance
The Department of Human Services began checking county compliance with specific requirements of the law in 2017.
Data shows compliance rates have improved, but in 2022, the agency reviewed 37 counties and found 21 were out of compliance, resulting in a reduction in state aid.
Smith said children are often removed from homes because of what is defined as neglect.
She said poverty, addiction, cultural bias and a range of other social issues often contribute to that decision.
“And when we think about the child welfare system and all these different systems, it's kind of the perfect place for them all to come together and have this really devastating impact to communities,” she said.
The state needs to provide more resources for counties to improve staffing and provide adequate training to fully implement ICWA and MIFPA, said Kunesh.
“The counties have to make a commitment, and we have to make a commitment at the legislature to fund those counties to ensure that there are people and resources available in order to do that,” she said.