A legal team that has repeatedly challenged the constitutionality of the 1978 Indian Child Welfare Act is again taking the issue to the U.S. Supreme Court.
The petition was filed May 5 by Timothy Sandefur at the Goldwater Institute, an Arizona-based conservative think tank, and Minnesota attorneys Mark Fiddler and Jeffrey M. Markowitz. It challenges the federal law known as ICWA and Minnesota’s Indian Family Preservation Act (MIFPA), both of which protect tribal children and families in child welfare cases.
“Together, these laws impose a set of rules on child-welfare cases involving children who are biologically eligible for membership in an Indian tribe — rules that, amazingly, are less protective of Indian children than are the rules that apply to kids of other races,” the Goldwater Institute stated in its press release announcing the filing.
“And each day, children like those involved in this case are denied the possibility of safe, loving homes, solely because of the color of their skin,” the petition reads.
Countering that argument, Indigenous rights scholars note ICWA has nothing to do with race because it is based on an agreement between the U.S. government and sovereign tribal nations.
In March, the Minnesota Supreme Court ruled that two white foster parents represented by the Goldwater legal team do not have standing to argue that ICWA violated their constitutional equal protection rights. The case involves Red Lake Nation twins identified in court documents as Ki. K. and Kh. K. As medically fragile newborns, they were placed temporarily with Kellie and Nathan Reyelts, biological parents of seven children who have fostered dozens of other children since 2010.
In accordance with ICWA, the children were later moved to be raised by relatives.
The Reyelts and their legal team argued that they were discriminated against when the siblings were removed from their home.
Shannon Smith, executive director of the ICWA Law Center in Minneapolis praised the ruling in March. “The Minnesota Supreme Court’s decision reflects the Court’s understanding that considering family and tribal connections is in the best interests of Indian children,” she told The Imprint.
The Reyelts’ case was first filed in 2023 district court, and worked its way through the court of appeals before reaching the Minnesota Supreme Court. The plaintiffs claimed that ICWA’s foster care placement preferences that prioritize kin and tribal members are “discriminatory,” and that the children in their home “were harmed by ICWA by being removed from a loving home where they were thriving and attached to their caregivers.”
But in a 49-page subsequent ruling March 11, Minnesota Supreme Court Chief Justice Natalie Hudson wrote that lower courts had rightfully denied the Reyelts’ attempts to intervene in the case and to have the twins returned to their home.
The Reyelts’ latest appeal to the nation’s highest court asks the justices to rule on whether ICWA and MIFPA “unconstitutionally deny equal protection to ‘Indian’ children and to non-‘Indian’ people who seek custody of them,” and whether the Minnesota Supreme Court’s ruling violated the petitioners’ First Amendment rights.
“Had the children been white, black, Hispanic, Jewish, or anything other than Native American, they would likely have remained with the Reyelts, who took great care of them and hoped to become their forever family,” the Goldwater Institute press release states.
Three years ago, the U.S. Supreme Court upheld the constitutionality of ICWA, ruling against plaintiffs in the Brackeen v. Haaland case who argued the federal statute was unconstitutional and denied non-Indigenous parents adoptive rights.
The latest appeal to the nation’s highest court may or may not be taken up, and there is no clear timeline about how long that decision might take.
