The federal Indian Child Welfare Act was created to keep Native American families together. (Photo by FatCamera/Getty Images via Canva)

Oregon Attorney General Ellen Rosenblum has joined 23 fellow attorneys general in supporting a federal law that protects Native American foster children and adoptees.

The Indian Child Welfare Act of 1978 was passed by Congress to combat a widespread and destructive practice of displacing Native American children by placing them with non-Native parents. Oregon passed its own law in 2020 to address the disproportionate number of Native American foster children in the system.

Rosenblum said in a statement that the Indian Child Welfare Act had improved the lives of “countless Native American children by ensuring that their tribes are able to collaborate with child welfare agencies.”

“Oregon has a strong interest in defending the constitutionality of (the act), which respects tribal sovereignty and promotes cooperative work between states and tribes.” Rosenblum said.

The federal and state laws recognize the damage done by removing Native children from their culture, but opponents say the concept is racist. They are challenging the federal law with four cases that have been consolidated as one, scheduled to be heard by  the U.S. Supreme Court this fall. Rosenblum and the other attorneys general are worried the law could be struck down or significantly altered by the court’s 6-3 conservative majority.

America has a history of displacing Native American children through the foster system, a practice out of line with the Native custom of children being raised by extended families. At the time the federal law was passed, states commonly initiated child-custody proceedings that removed hundreds of Native children from their families and placed them with non-Native adoptive families and foster homes, according to documents in the case challenging the law.

When it was passed 44 years ago, the welfare act prioritized placing Native adoptees with members of their own tribe when possible. The law also establishes minimum standards governing the breakup of Native families.

In 2016, advocates and justice officials in Oregon sought to create a state law that would help judges, attorneys and caseworkers better understand the requirements of the welfare act and recent updates to the law, according to the state Department of Human Services. Ultimately, in 2020, the state Legislature passed Oregon’s version of the law, modifying state child dependency laws to conform to the federal welfare act.

Around that time, Native American and Alaska Native children were three times more likely to be in foster care than non-Native kids. Between Jan. 1 and July 15, 591 Native children from 61 federally recognized Indian tribes were involved in Oregon juvenile dependency proceedings.

Like the federal version, the Oregon law was written to ensure Native American children in the state foster care system remain in “culturally appropriate settings.” Oregon’s law also requires the Department of Human Services to provide reports every two years about Native American and Alaska Native children in the welfare system.

The consolidated case before the U.S. Supreme Court – Haaland v. Brackeen – stems from the 2016 adoption of a 10-month-old Navajo boy by a white Texas couple, the Brackeens. Following the adoption, the Navajo Nation attempted to place the child with a Navajo family under the provisions of the welfare act – but failed. The Brackeens were later prevented from adopting the boy’s sister, prompting this legal challenge.

The Brackeens and other opponents say the law violates the equal protection clause of the 14th Amendment and other laws against racial preference. The case was heard in federal district court in Texas and the 5th District Court of Appeals before being granted review by the U.S. Supreme Court in February.

Rosenblum has joined previous briefs in the case in 2020 and 2021.

She and the 23 other attorneys general argue that the legal challenge would hurt Native children and erode tribal sovereignty.

“In our view, plaintiffs’ challenges to (the act) are not supported by this court’s precedent or by the text or history of the relevant constitutional provisions,” they wrote in the brief.

Oregon Capital Chronicle

Oregon Capital Chronicle is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Oregon Capital Chronicle maintains editorial independence. Contact Editor Lynne Terry for questions: Follow Oregon Capital Chronicle on Facebook and Twitter.

Garrett Andrews, Oregon Capital Chronicle

Garrett Andrews covers justice, health and social services. Before joining the Capital Chronicle, he worked for 14 years at newspapers in Colorado and Oregon, focused primarily on crime and courts. He has a master's degree in political science from the University of Colorado-Denver.