Supreme Court OKs law favoring Native homes for Native foster children; in some states it doesn't seem to work well

Cheyenne Hinojosa with her younger daughter, who was taken
by child welfare workers shortly after she was born. Their story
is a focus of the ProPublic report. (Photo by Jaida Grey Eagle)

The U.S. Supreme Court has upheld a law aimed at keeping Native American foster children in Native American homes. In a 7-2 decision Thursday, the court upheld the 1978 Indian Child Welfare Act, which set minimum standards for removal of Native children and "prioritized placing children into homes of extended family members and other tribal homes — places that could reflect the values of Native American culture," reports Michelle Griffith of States Newsroom.

The law was meant to reverse a longstnding federal policy of putting Native children in boarding schools and white adoptive homes, with the goal of assimilating them into the white American mainstream, Griffith writes" "Between 25% to 35% of all Native American children were being taken from their homes and placed with adoptive families, foster care or boarding schools."

The court upheld the law in a case brought by a white Texas couple, Chad and Jennifer Brackeen, who argued that it is tracially discriminatory. They won a "long legal battle with the Navajo Nation to adopt a Native child . . . and are now trying to adopt the boy’s half-sister, who has lived with them since infancy," Griffith reports. "The Navajo Nation has opposed that adoption."

Tribal leaders praised the decision, calling it a “major victory for Native tribes, children, and the future of our culture and heritage,” Griffith reports. "Native rights proponents have argued that the Brackeen case was an attack on tribal sovereignty, and reporting from Rebecca Nagle, host of the podcast This Land, found that the lawyers behind the Brackeen case were backed by right-wing interest groups who have filed other cases challenging tribal sovereignty."

The law isn't working well in "a handful of states, including South Dakota," Jessica Lussenhop and Agnel Philip report for ProPublica. "There, 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, the ProPublica analysis found. That was one of the highest rates in the country and nearly 13 times the rate for white children in the state."

UPDATE: Conservative columnist George Will calls the decision a blunder that will endanger more Native American children.