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A SCOTUS ruling could overturn the Indian Child Welfare Act. Here's what that means

 Supreme Court
AP Photo/Mariam Zuhaib

The Supreme Court is seen on Election Day in Washington, Tuesday, Nov. 8, 2022.

Almost 50 years ago, the Indian Child Welfare Act was approved to guide cases of abuse and neglect of Native children.  

This month, the U.S. Supreme Court heard arguments in a case that challenges the constitutionality of the act. 

The case was brought by plaintiffs who wanted to adopt or foster Native children, including a woman who wants her Native child to be adopted by non-Natives. 

The ACLU in several states, including Utah and Arizona, say it is constitutional, and worry that if the Supreme Court sides with the plaintiffs, it could reopen the door to Native children being taken from their families. 

That happened for decades in this country, when Native children were taken and forced into schools, including two in Nevada, in an attempt to eliminate traditional Native culture, replacing it with mainstream American culture. 

To this day in some parts of the country, Natives are up to four times more likely to have their children placed into foster care than their non-Native counterparts.  

Indigenous affairs reporter Miles Brady talked with Koston Lathoris, a Las Vegas lawyer and citizen of the Southern Paiute tribe, about the case. 

"The Indian Child Welfare Act, what it does first is it says that if an Indian child is being removed, the parents and the tribe should be notified about that proceeding," he explained. "There is a long history of forced assimilation in our country. And it goes back to the boarding schools, it goes to relocation programs, and it goes to child welfare proceedings, as well."

He cleared up a misconception about why the children are removed, saying when talking in context of the act, the children would be removed for reasons non-Native children would not be removed for. 

"When the proceedings happen in state court, there are certain efforts that are supposed to be made, active efforts, to try to reunify the child with their family," he said. "But if for whatever reason, the child is not able to be reunified with their family, there are placement preferences. And the first placement preference is that the child should be placed with a member of their extended family. If there's no extended family member that is suitable or able, then it goes to a member of their tribe. And if there's nobody suitable or able from that category, then to a member of a tribe, and then to a non-tribal member. The idea being that children should be placed with their family and the members of their tribal nation before others."

He said if a child is raised outside of a tribe, they can miss out on cultural components, political rights and an understanding of who they are and where their people come from.

"The concern here is if the Supreme Court is going to make a decision —other than that the Indian Child Welfare Act is constitutional and shall continue as is— it opens up a door for other challenges to other laws," Lathoris said. "The Supreme Court has historically recognized that tribes are nations and that they have sovereign rights. There is this push against it now. And it's scary."

Kostan Lathouris, chair, Nevada Indian Commission

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(Editor's note: Miles is no longer a member of our staff, but you can still enjoy their contributions here.)