Minnesota legislators modeled their bill on the 1978 federal Indian Child Welfare Act, or ICWA. At the time ICWA was passed, powerful state child‐welfare agencies, often answerable only to themselves, were removing as many as 3 in 10 children from Indian homes. These children tended to be placed with white families even if nonabusive homes with relatives were available. The ICWA took the power to place a child away from the states and gave it to the tribes. It also made it harder to terminate Indian parental rights and prescribed that Indian children should be placed in Indian homes whenever possible.
The ICWA is the subject of a constitutional challenge in the Fifth U.S. Circuit Court of Appeals. The challengers in that case are a white adoptive couple from Texas who contend the ICWA denies children and families equal protection of the law by treating them differently because of their race. Several Indian tribes, 21 state attorneys general, and the Native American Rights Fund counter that the ICWA doesn’t hand out rights on the basis of race, color or lineage—categories that would trigger strict scrutiny under the Constitution’s Equal Protection Clause—but instead based on membership or eligibility for membership in an Indian tribe, a political classification that may heavily overlap with race but isn’t identical to it.