First Nations tribes in the United States are fighting three conservative states to maintain their right to keep Native children in the protection of their tribe.
The Indian Child Welfare Act requires Indigenous children in the child protection system be placed in foster care with an extended family member as the first recourse, or with a family approved by the child's tribe if that is not possible.
If neither of those options can be exercised, the child can be placed with a non-Native foster or adoption agency.
But now a challenge started by a non-Native Texas family who wanted to adopt the half sister of a First Nations child they fostered could threaten the future of the Act.
That challenge is being supported by the attorneys general of Texas, Indiana and Louisiana, who are suing the Federal government and arguing that Act is discriminatory.
On August 12 five tribes filed a brief with the US Supreme Court defending the Act.
In the brief, Cherokee Nation principal chief Chuck Hoskin Jnr, Morongo Band of Mission Indians chairman Charles Martin, Navajo Nation president Jonathan Nez, Oneida Nation chairman Tehassi Hill and Quinault Indian Nation president Guy Capoeman said tribes and children were better off when Native children could stay with their family and community.
They argued the Indian Child Welfare Act protects tribal sovereignty and self-governance by safeguarding children against "unwarranted removals by non-Indians and states".
"Plaintiffs do not represent Indian tribes, families or children but fill their briefs with claims about Indians' best interests," the group said.
In a separate statement, tribal leaders said the Act was widely supported.
"If those attacking ICWA are successful, they would not only dismantle a law that is central to our sovereign interests in protecting our children but also create chaos and instability throughout the country by overturning the basic framework of Indian law and the political nature of tribal citizenship," they said.
The law was introduced in 1978 after decades of child welfare officials and private adoption agencies separating First Nations children from their families.
According to figures published by the National Indian Child Welfare Association in February 2019, First Nations children were four times more likely to be removed by state child welfare systems than non-Native children, even when non-Native families had similar problems.
Opponents of the Act have claimed the law is unconstitutional on the grounds it discriminates on the basis of race, while supporters note the law is based on tribal membership, not race.
On November 9 this year, the Supreme Court will hear arguments in the case, known as Brackeen v Haaland.
The action was initiated by Chad and Jennifer Brackeen, a Texan couple who fostered a child eligible for membership in the Navajo and Cherokee tribes and ultimately adopted him after a placement with a Navajo family fell through. The couple is now trying to adopt the boy's younger half-sister.
In the original Brackeen v Haaland case, a Federal judge in Texas ruled in 2018 the Indian Child Welfare Act breached the US constitution, claiming it was racially motivated and violated the equal protection clause.
More than 20 US states joined hundreds of tribes, advocacy groups and the federal agency overseeing First Nations affairs in urging an appellate judge to uphold the law, and in 2019 the 5th US Circuit Court of Appeals reversed the decision on appeal.
The court of appeals found the Act was a law based on political considerations, citing US Supreme Court case United States v Antelope, which held "that federal legislation with respect to Indian tribes ... is not based upon impermissible racial classifications".
