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Supreme Court Upholds Institutionalized Racism With Ruling On Indian Child Welfare Act


The Supreme Court upheld the Indian Child Welfare Act (ICWA) in a ruling handed down Thursday that allows American Indian children to be stripped from parents based on skin color.

Passed in 1978 out of fear that the adoption of American Indian children would erode Indian culture, the decades-old law mandates children with the slightest trace of Indian blood be placed in tribal custody before non-Indian parents be granted guardianship. In theory, the law provides cultural boundaries when it comes to the adoption of Indian children, but in practice, this means adoptive parents can have their children stripped from the only parents they’ve ever known.

The statutory priority placed on Indian tribes trumps the wishes of biological parents and the children, many of whom often end up in custody on faraway reservations devoid of opportunity. The federal law provides that American Indians are the only group of U.S. citizens whose child custody claims are decided solely on the color of their skin rather than the best interests of the child.

[READ: The Indian Child Welfare Act Is Institutionalized Racism]

Plaintiffs in Haaland v. Brackeen alleged the ICWA violated the Equal Protection clause and exceeded congressional authority to dictate child custody cases, which are dictated at the state level. In a 7-2 decision, the high bench punted on the racial issue of equal protection but upheld Congress’ power to regulate child custody claims.

“The bottom line is that we reject all of petitioners’ challenges to the statute, some on the merits and others for lack of standing,” wrote Justice Amy Coney Barrett, who authored the majority opinion. “It is true that Congress lacks a general power over domestic relations … But the Constitution does not erect a firewall around family law.”

Justices Clarence Thomas and Samuel Alito each dissented.

“The first line in the Court’s opinion identifies what is most important about these cases: they are ‘about children who are among the most vulnerable,'” Alito wrote. “But after that opening nod, the Court loses sight of this overriding concern and decides one question after another in a way that disserves the rights and interests of these children and their parents, as well as our Constitution’s division of federal and state authority.”

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