In America: Indian Child Welfare Act Challenged in Petition to the Supreme Court
Documerica
A recent challenge to the Indian Child Welfare Act (ICWA) and Minnesota’s Indian Family Preservation Act (MIFPA) has been petitioned to the US Supreme Court in the case of Nathan and Kellie Reyelts v. Keith Ellison. This case presents a new challenge to the June 2023 ruling in Haaland v. Brackeen, in which the US Supreme Court held that Congress retains authority to enact laws (ICWA) protecting tribal sovereignty and keeping Native American children with their families.
Reyelts v. Ellison involves a dispute over the foster care custody of newborn twins from the Red Lake Nation. Petitioners Nathan and Kellie Reyelts provided temporary foster care for these twins due to their medically fragile status. A year and a half later, the twins were moved to live with their relatives in accordance with the ICWA and MIFPA.
The Reyelts argued that they were unfairly discriminated for not being Native American and filed a case with the district court in 2023. The case made its way through the court of appeals and eventually reached the Minnesota Supreme Court.
On March 11th, 2026, the Minnesota Supreme Court ruled that the Reyelts lack legal standing to argue that the ICWA violated their equal protection rights. Mark Fiddler, a lawyer from the Goldwater Institute on the Reyelt’s legal team, commented on the ruling:
“Obviously, this is a very disappointing decision. The Reyelts provided exceptional care to these two medically fragile twins, and they would have continued to care for them had Red Lake Nation not intervened, leaving the foster parents absolutely no means of challenging the removal of the twins based on race.”
The Reyelts petitioned the US Supreme Court to declare the ICWA and MIFPA as unconstitutional. Thus, the questions presented to the US Supreme Court are:
Whether ICWA and MIFPA unconstitutionally deny equal protection to “Indian” children and to non-“Indian” people who seek custody of them.
Whether denying Petitioners intervention because of their good-faith argument that ICWA and MIFPA are unconstitutional violates the 1st Amendment.
The Haaland v. Brackeen case raised similar questions, yet the U.S. Supreme Court chose not to rule on them. In a concurring opinion in Haaland v. Brackeen, Justice Kavanaugh commented on the equal protection question:
“Under the Act, a child in foster care or adoption proceedings may, in some cases, be denied a particular placement because of the child’s race — even if the placement is otherwise determined to be in the child’s best interests. And, a prospective foster or adoptive parent may, in some cases, be denied the opportunity to foster or adopt a child because of the prospective parent’s race. Those scenarios raise significant questions under bedrock equal protection principles and this Court’s precedents.”
These concerns have now been elevated by the recent petition in Reyelts v. Ellison. Following the Minnesota Supreme Court's ruling in Reyelts v. Ellison, the Goldwater Institute published an article arguing that the ruling also violated the Reyelts’ 1st Amendment rights. According to the ruling, the Reyelts’ position on the discriminatory nature of the ICWA and MIFPA made them unfit to care for the children.
More broadly, the Goldwater Institute criticizes the ICWA for making it harder to protect Native American children from abuse and neglect. Additionally, the Goldwater Institute highlights how the ICWA allows courts to deny or delay adoption cases based on the child’s race, which is otherwise prohibited under federal law.
While these are credible challenges to the constitutionality of the ICWA and MIFPA, it is unlikely that the US Supreme Court will rule in the Reyelts’ favor. Shannon Smith, an Indigenous Rights legal expert, commented on whether the Haaland v. Brackeen ruling would close the door on future challenges to the ICWA:
“I would say yes — or it should. Those two issues were a way to get at the core of the relationship between the federal government and tribes, and to diminish tribal sovereignty. To me, those challenges in this case were not about the Indian Child Welfare Act. They were a way to get at the heart of tribal sovereignty.”
Justice Gorsuch’s comments on the Haaland v. Brackeen ruling reaffirm this statement:
“Congress exercised that lawful authority to secure the right of Indian parents to raise their families as they please; the right of Indian children to grow in their culture; and the right of Indian communities to resist fading into the twilight of history.”
Justice Gorsuch also noted that the ICWA was originally conceived as a direct response to the mass removal of Native American children from their families in the 1950s, 1960s, and 1970s.
Smith also noted that the argument that ICWA violates the Equal Protection Clause is difficult to prove in court. By taking this stance, the plaintiff (the Reyelts) would need to prove that there is harm being done to them by being blocked or delayed from adopting a Native American child due to the ICWA’s stipulations. The plaintiff’s right or entitlement to adopt a Native American child being delayed or blocked then, in turn, harms the child.
Ultimately, the latest challenge to the ICWA in the case of Reyelts v. Ellison appears unlikely to bear any fruit for the Reyelts or the Goldwater Institute. The ICWA retains staunch supporters among the current Justices presiding in the Supreme Court. At the same time, a minority of Justices seem to agree that the ICWA raises serious questions about whether it violates the Equal Protection Clause. It remains to be seen whether the US Supreme Court will even take up the case of Reyelts v. Ellison.