Furor over the adoption of a Native American preschooler in Texas has reached the U.S. Supreme Court, and it could undermine efforts to improve our own state’s child welfare system.

Though the case raises difficult questions about what exactly is in a child’s best interest, the court should uphold the Indian Child Welfare Act.

At issue is a provision in the 1978 federal law that says maintaining a child’s ties to their Native heritage is paramount in all adoptions of Native American children from foster care, even if a non-Native family has more parenting resources. 

The state of Texas claims that this enshrines a racial preference, making the law unconstitutional. But if the court strikes it down on that basis, every treaty protecting Native rights could be threatened — including agreements on land, fishing, mining and gaming, industries that are critical to the tribes’ survival.

In our state, which has 29 federally recognized tribes, the stakes are momentous enough that Ross Hunter, secretary of the Department of Children, Youth and Families, and his agency’s director of tribal relations, Tleena Ives, rallied outside the Supreme Court during arguments last week. They are rightly lending their support to uphold the law. Washington state Attorney General Bob Ferguson has weighed in similarly through several amicus briefs.

Claiming that the Indian Child Welfare Act privileges one race over another is a deliberate misreading, since tribes in the U.S. have traditionally been treated as sovereign nations, like Canada or Mexico, rather than racial categories. But the law does encompass some uncomfortable ideas, not least the notion that a tribal family is always better than a non-Native one in the adoption of Native American children. 


That was the scenario confronting Jennifer and Chad Brackeen, a white couple in Texas, who wanted to adopt a Navajo baby. They were already legal guardians of the child’s older brother, with agreement from the Navajo Nation. This time, however, a great aunt stepped in to claim the newborn, even though best practice in child welfare is to keep siblings together whenever possible. 

The ugly history that led to I.C.W.A., as the law is known, is equally relevant. More than a century ago, the U.S. government decreed that the best way to solve what it erroneously deemed America’s “Indian problem” was to separate Native children from their tribes. By the late 1970s, up to 35% had been ripped from their families and placed in non-Native foster homes and institutions, steadily chipping away at the tribes’ future existence. 

A decision on I.C.W.A. is not expected for several months. Hunter, meanwhile, has spent years turning Washington’s entire child welfare system toward a standard that aligns with the law by placing as many foster children as possible with kin. He is also trying to ensure that these relatives get state stipends comparable to what licensed foster parents receive. 

Actively working to keep Native families intact by providing culturally relevant services for problems like substance abuse is another requirement of I.C.W.A. that models the current family-preservation emphasis in foster care, for kids of every background. 

Hunter and Ives appreciate the wrenching, Solomon-esque questions at play in these decisions. But child welfare experts frequently refer to I.C.W.A. as a gold standard in foster care. Undermining it sends precisely the wrong message.