The Indian Child Welfare Act of 1978 aimed to protect Indigenous children in foster care by giving tribes more ability to place children with families in Native communities. Now, the U.S. the Supreme Court has agreed to review the law's constitutionality after Texas filed suit arguing states should have more say about where children are placed, and shouldn't have to defer to tribal law or the federal government.
Kate Fort, director of the Indian Law Clinic at Michigan State University College of Law, tells Texas Standard that Texas is trying to invalidate almost the entirety of the law, but is especially focused on child "placement preferences," as well as provisions in the law that require Texas to make extra efforts to involve tribes – and even defer to them in some areas – when it comes to foster-care decisions.
Fort argues the Indian Child Welfare Act, or ICWA, is the "gold standard" when it comes to protecting Native children in foster care.
Listen to the interview with Fort in the audio player above or read interview highlights below:
– ICWA became law in 1978 after years of what Fort says was an "overwhelming" removal of Native American children from their homes.
"Twenty-five percent to 35% of all Native children were removed from their homes in the years leading up to the passage of the Act," she said.
– The Fifth Circuit Court of Appeals has already ruled on Texas's challenge. Fort says the court's panel of 16 judges was split on certain aspects of the law, which she says "muddied the waters."
– Now, the U.S. Supreme Court will consider the constitutionality of parts of the law, including whether Congress has the power to tell states what to do in this matter.
– Fort says proponents of ICWA are frustrated and worried about having to defend the law for the third time in front of the Supreme Court.
"I think there is a fear that this court may rule against the law, which by all accounts, has been very successful in keeping children with their families and communities. And that's incredibly important to tribes," she said.
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