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U.S. Supreme Court Weighs Race-Based Challenge to Native American Adoption Law

The U.S. Supreme Court on Wednesday is set to consider a dispute over the legality of decades-old federal requirements that give preferences to Native Americans and tribal members in the adoption or foster care placements of Native American children.

The justices are due to hear oral arguments to weigh a challenge by a group of non-Native American adoptive families and the Republican-governed state of Texas to the Indian Child Welfare Act of 1978 after lower courts declared parts of the law unconstitutional. Democratic President Joe Biden’s administration and several Native American tribes are defending the law.

The challengers contend that some of the preferences racially discriminate against non-Native Americans in violation of the U.S. Constitution’s Fifth Amendment promise of equal protection under the law.

The case is one of three major race-related disputes the conservative-majority court has confronted since the beginning of its current nine-month term last month. {snip}

Tribal groups have said the adoption challenge is an attack on their sovereignty and warn that a ruling that broadly undermines the Indian Child Welfare Act could affect issues well beyond child welfare, including land rights and economic development.

The Indian Child Welfare Act sought to reinforce tribal connections by setting federal standards for removal and placement in foster care or adoption, including that “preference” be given to members of a child’s extended family, other tribe members or “other Indian families.”


The law’s defenders have said that its procedures distinguishing between “Indians and non-Indians” are valid under both the Constitution and the Supreme Court’s own precedents.

The Justice Department said in a filing that the “Constitution itself singles Indians out as a proper subject for separate legislation, and this court has held in an unbroken line of precedents that such classifications are political rather than racial.”


A federal judge ruled in favor of the challengers in 2018. {snip}