The US supreme court has ruled that Native American children can continue to be protected under federal law against being removed from their tribal communities for fostering or adoption, rejecting a petition from a white couple who argued that the provision was a form of racial discrimination.
"The plaintiffs in the Supreme Court case, Jennifer and Chad Brackeen, are a white couple living in Texas who want to adopt a now 4-year-old girl whose birth mother is Navajo. The couple had already adopted the girl’s brother, who shares the same birth mother, and when the girl was born in 2018 and fostered by another family, the couple filed for custody of her, too.
But ICWA establishes that children in foster care who are eligible for tribal membership should be placed with extended family, another member of their tribe or another Native American family whenever possible. And a relative — a great-aunt who lives in the Navajo Nation in Arizona and visits regularly with the children’s older siblings — also wants to adopt the girl."
I’m sad for the children caught in the middle of this fight, though I doubt their case is unique. But trying to tank the entire ICWA, which would have apparently opened the door to question other sovereign rights of indigenous tribes, is such a gross overextension. Glad to hear this news.
This is unexpectedly good news
Not necessarily. I think it’s more important that a child be placed with a loving family rather than that they be placed with someone that happens to share a lot of genes or a cultural heritage with their ancestors, and this court case says that those latter factors can override the former. It’s complicated.
If I understand correctly, the opinion explicitly focuses on Indian tribes as nations – i.e. legal entities – not races.
Gorsuch is a mixed bag at best on a lot of issues, but he has been as good as anyone could expect on Indigenous issues. Check out his concurrence in this case (starting on PDF page 43), which straightforwardly grapples with the history of forced family separations and residential schools.
It absolutely sucks that we have to rely on landing two out of three from Roberts, Kavanaugh, and Gorsuch to get anything like a humane decision out of this court, but given the presidents who appointed them, I guess it could be worse?
Extremely rare SC W
