Washington (AFP) - The US Supreme Court on Wednesday heard arguments in a case challenging a decades-old law on Native American adoptions, but which touches on broader questions of Indigenous rights in the United States.
Like in Canada, Native American children in the United States were for decades removed from their biological parents and placed in boarding schools or with non-Indigenous families as part of a policy of forced assimilation.
Congress in 1978 sought to bring a final end to the practice with the passage of the Indian Child Welfare Act (ICWA), which set strict standards for removing Native American children from their parents and required tribal families to receive first priority for placements and adoptions.
The Republican-led state of Texas, as well as families limited by the ICWA from adopting Native American children, filed a legal challenge under the US Constitution's 14th Amendment, which limits the differentiation between citizens on the basis of race.
"ICWA violates the Constitution’s equal-protection guarantee by categorizing children based on genetics and ancestry and potential adoptive parents based on their race," argued Texas in its court filing.
Several Native American tribes, with the support of President Joe Biden's administration and the powerful ACLU civil rights organization, have countered that the law is not based on race but on Indigenous groups' sovereign rights.
Under US law, Native American tribes have a special status with their own legal jurisdictions and court systems.
The Supreme Court decided to intervene in the case after lower courts issued divergent opinions, and is expected to issue its final ruling next spring.
Several members of the court's conservative majority have expressed skepticism over the law's legal foundation but one, Neil Gorsuch, has a record of joining the liberal minority on Native American issues.
In addition to the case's immediate impact on the ICWA, it could also have "revolutionary, catastrophic consequences," says Harvard law professor Joseph Singer.
"There are hundreds of treaties with Indian nations that are still in effect," Singer told Harvard Law Today.
"If you can’t treat Indian nations as sovereigns, if you can’t treat Indians differently from non-Indians, does that make all those treaties unconstitutional?" he said.
