The Supreme Court has preserved a federal law giving preference to Native American families when it comes to adopting Native children in foster care. The court’s 7-2 ruling Thursday leaves in place the 1978 Indian Child Welfare Act, which aims to reverse centuries of government-sanctioned efforts to weaken tribal identity by separating Native American children from their families and raising them outside their tribal cultures.
The law requires states to notify tribes when adoption cases involve their members or children eligible for tribal membership, and to try to place them with their extended family, their tribe or other Native American families. It was enacted to address historic injustices: Before the law took effect, between 25% and 35% of Native American children were being taken from their families and placed with adoptive families, in foster care or in institutions. The majority were placed with white families or in boarding schools in attempts to assimilate them. A series of scandals involving the long-closed boarding schools shed light on government-sanctioned efforts to wipe out Native culture by cutting their hair and forbidding them from speaking their languages.
A ProPublica investigation published the morning of the decision suggests that the law is unevenly applied across the states. The story profiled the case of Cheyenne Hinojosa, a Native American mother in South Dakota who lost her parental rights for one of her children due to the child welfare agency’s failure to follow ICWA. A ProPublica analysis found that in South Dakota, more than 700 Native American children — or about one of every 40 living in the state — experienced the termination of their parents’ rights from 2017 to 2021. It’s one of the highest rates in the country.