SCOTUS ruling will determine who can adopt Indigenous children

November marks the beginning of Native American Heritage Month. While Indigenous communities across the U.S. commemorate and celebrate their history, language, culture, and traditions, a severe threat to their rights is on the line at the Supreme Court. On November 9, the court will hear three cases that will ultimately determine the legality of the Indian Child Welfare Act (ICWA) and whether it discriminates against white Americans.

What is ICWA

ICWA is a federal law enacted in 1978 to protect the rights and culture of Indigenous children who are removed from their homes by public and private agencies. It ensures that tribes have a right to intervene when their members are involved in child welfare cases and gives Native Americans preference in adoptions of Native children. Today, American Indians and Alaska Natives make up 1% of the population of children in the U.S. but account for 2% of the children in foster care.

The cases arguing that ICWA is racist toward white people

Similar to the Supreme Court cases on affirmative action heard this week, these hearings will see opponents of ICWA argue that it discriminates against white people. Consolidated under Brackeen v. Haaland (Interior Secretary Deb Haaland, the country’s first Indigenous cabinet member, will defend ICWA in oral arguments), the case involves three white couples who fostered and/or wish to adopt Indigenous children.

Two of the plaintiffs, a couple from Minnesota and another from Texas, argue that the ICWA is unconstitutional because it is discriminatory. A Nevada couple says that the ICWA interferes with a biological mother’s wishes to allow them to adopt her child.

If the Supreme Court determines that ICWA has no standing, the ruling could weaken U.S. government relations and policies and protections for Indigenous tribes.

With a 6-3 conservative majority on the bench and a track record of dismantling progressive protections for women and BIPOC, supporters of ICWA are alarmed. The American Civil Liberties Union says that if the Supreme Court overturns ICWA, Native children would be indiscriminately separated from their families, “simultaneously depriving tribes of future generations—putting the very existence of tribes in jeopardy.”

A predatory history of white Christians and Indigenous children

The U.S. and Canada have a historically ugly past regarding the cultural cleansing of Indigenous people in North America. Forcibly removing Indigenous children with little to no evidence of abuse or neglect by the parents is commonplace in North America, as are aggressive efforts by evangelical Christians to assimilate children. The Church of Latter Day Saints was a prominent group at the helm of removing Indigenous children. Followers of the Book of Mormon believe in a prophecy in which Latino and Indigenous people are the ancestors of evil Israelites that migrated to modern-day North America, and that converting a child would relinquish their curse of dark skin and obtain white skin in the afterlife. The church was so invested in the ideology that they created an Indian placement program, which arranged for church members to foster Indigenous children, with approximately 50,000 children cycling through the program.