Minnesota justices question white couple’s standing in Indian Child Welfare Act challenge

This story is being co-published with The Imprint, a national nonprofit news outlet covering child welfare and youth justice.

Amid drums, smudging and chants to “bring our children home,” supporters of the Indian Child Welfare Act gathered early this morning outside the Minnesota Capitol building, as the state’s highest court considered the latest legal threat to the bedrock 1978 law.

The rally outside the Supreme Court today was deeply personal for Korina Barry, of the Leech Lake Band of Ojibwe. After losing her siblings to foster care, now she worries that her 2-year-old daughter could be taken from her by child welfare workers.

“For me that trauma is very real,” she said. “And that’s why I’m here because we should be pushing back against these attorneys who are challenging ICWA’s constitutionality.”

A crowd of more than 50 people attended what became part celebration, part protest — including state lawmakers, activists, mother-daughter pairs and county workers, some wearing regalia and dancing, others pushing strollers.

“We’re all part of the solution,” state Representative Heather Keeler, a member of the Yankton Sioux Tribe, told those assembled. “If we’re mad that Native children are getting placed outside of our homes, that means we need more of us to step up — it’s a job for the entire community.”

Keeler, in an orange dress, joined others wearing the color to mark Canada’s Indigenous holiday marking National Day for Truth and Reconciliation, which commemorates survivors of Indian boarding schools and their descendants.

Rose, a young Lakota woman, said she showed up to dance for children “dealing with generational trauma.” Tamra Edwards, who works with Minnesota’s ICWA Guardian ad Litem program described herself as an “ally,” working “to keep children with their families and relatives.”

Red Lake Nation case

Inside the Capitol building later that morning, Supreme Court justices heard oral arguments in the case named for parents L.K. and A.S., which centers on two Red Lake Nation foster children. The case is before the state Supreme Court following a June appeals court ruling.

Plaintiffs Kellie and Nathan Reyelts of Fairmont, a white couple, seek custody of twins who now live with their maternal grandmother. French lives on Red Lake Nation’s reservation and also cares for the twins’ older sibling.

The Fairmont couple say they should have custody of the twins, who lived with them for more than a year shortly after they were born in 2022. Their legal argument centers on a constitutional challenge to the Indian Child Welfare Act, as well as the local version of the law, the 1985 Minnesota Indian Family Preservation Act, or MIFPA.

The justices did not rule from the bench today. A lower court has already struck down the couple’s claim that the two laws — which seek to ensure the preservation of tribal families — discriminated against them because of their race.

The Fairmont couple, who have fostered more than 30 children, are represented by the same attorneys who took a similar challenge all the way to the U.S. Supreme Court in the Brackeen v. Haaland case. Thus the case is being closely watched by legal experts across the country.

The Reyelts’ attorney, Mark Fiddler of the Turtle Mountain Band of Chippewa Indians, has devoted much of his legal career to dismantling the 45-year-old ICWA law. In this case — similar to Brackeen v. Haaland — his clients are white foster parents who allege that ICWA’s provisions are discriminatory. In a previous interview, Fiddler said when the twins went to live with their relative, they “were harmed by ICWA by being removed from a loving home where they were thriving.”

The Reyelts continue to request the children be returned to their custody. Arguing on their behalf alongside Fiddler is attorney Timothy Sandefur, the vice president of legal affairs for the Goldwater Institute. The Arizona-based Libertarian think tank has opposed the ICWA in more than a dozen cases since 2015.

They are opposed in court by attorneys for the Red Lake Nation, and the Minnesota Attorney General.

They’re joined by the biological mother of the two children at the center of the case. She is being named only by her initials, L.K., to protect her confidentiality.

But a statement sent by her attorney Ryan Gustafson reads:

“The Mother wants it to be known that she is grateful for the protections of the Indian Child Welfare Act and the Minnesota Indian Family Preservation Act. She recognizes that these laws have helped her Native community and its children, both in Minnesota and elsewhere.”

Gustafson further stated that “the children’s Mother agrees with her tribe and the state of Minnesota that ICWA and MIFPA are constitutional” and remains opposed to the current attempts to dismantle them. She said remaining with her children’s relatives is in their best interests and they are thriving, even as “this litigation has dragged on.”

In oral arguments, the Minnesota Supreme Court justices queried both sides intently, at times having heated debates during the hour-long proceeding.

Chief Justice Natalie Hudson and Associate Justice Anne McKeig, a descendant of the White Earth Nation, questioned Sandefur on a number of his arguments. There was particular focus on whether his clients, the Reyelts, had “standing” in the case — in essence, whether they had grounds to bring the constitutional issue before the court.

McKeig wondered aloud whether ICWA opponents had larger aims — and were using the state court as an “avenue to try to get the issue of constitutionality of the Indian Child Welfare Act before the United States Supreme Court.”

The justices also debated why the court should, or could, review the challenge to the U.S. Constitution’s equal protection clause, based on the claim of racial discrimination before the court today. Both ICWA and MIFPA grant special status for people who are members of tribes or who are eligible for membership, not because of their race, but because they are citizens of sovereign nations within this country.

In his opening remarks, Sandefur said due to ICWA and MIFPA, his clients “compete on an unequal playing field when they pursue their custody petition, and they are currently injured because of this pending matter.” He maintained that the laws were based on “biological” and “immutable characteristics determined by the accident of birth.”

Justices Hudson and McKeig repeatedly challenged that assertion.

“Your argument appears ahistorical to me, when you’re talking about federally recognized sovereign tribes,” Chief Justice Hudson said. “There is a history there that we cannot ignore, but I hear you minimizing that history.”

Sandefur shot back: “These children are citizens of the United States and citizens of the state of Minnesota, and they are entitled to the same equal protection rights as all other children.”

Hudson had another quick retort:

“But that undercuts the whole purpose of ICWA,” she said. “What ICWA was all about was because our country had proceeded along a path designed to disrupt the tribes. It’s about the tribes being able to control their future and their children.”

Attorney Joe Plumer, representing Red Lake Nation said that to date, the Reyelts have not been granted standing by lower courts, have been unable to establish any injury, and have not explained how the bench could redress their grievances.

Like some of the justices, Plumer pointed to the appearance of a larger aim sought by the plaintiffs, one that goes well beyond the best interests of the Red Lake Nation twins.

“We believe the appeal on the constitutionality should be dismissed because it’s not properly before the court,” Plumer said. “This Court’s not in the business of issuing advisory opinions, and that’s exactly what they would be issuing.”

ICWA supporters vow to fight on

Dozens of ICWA supporters who rallied in the early morning on a bright and windy day say they will be watching intently for the state Supreme Court’s decision, which is expected in the coming months.

Keeler said her Native-rich state continues to be a battleground for opponents of the laws that preserve Indigenous families, and she pointed to the toll that takes.

“Minnesota is a stomping ground for cases against ICWA and it’s just really exhausting and harmful,” Keeler said in an interview.

Those who gathered alongside her wore orange to honor Phyllis Webstad, the inspiration behind the “Orange Shirt Day” campaign and ongoing efforts to honor and preserve the legacy of boarding school survivors. Their centuries-long history is closely connected to the forced removal of tribal children into white foster and adoptive homes.

Webstad’s orange shirt movement is represented by a wound she suffered. Her grandmother gave her an orange shirt to wear on her first day at the Canadian boarding school that she was forced to attend. It was snatched from her the day she arrived. That shirt never made its way back to the family.

Representative Alicia Kozlowski, who is of Ojibwe descent, and state Senator Mary Kunesh, who is of Standing Rock Lakota descent, also attended the rally.

“When they come to us and say ICWA and MIFPA are unacceptable, we have to fight back and educate them — it’s not a racial issue,” Kunesh told the crowd gathered on the Capitol steps.

Some of the assembled came to honor family members who they’ve lost contact with in the child welfare system, and to reflect on ongoing attempts to erase Indigenous culture. Chairman Faron Jackson of the Leech Lake Band of Ojibwe noted his personal loss.

“My brothers were in foster care — taken away from our families before ICWA was established,” he said. “That law was put in place to keep our families together, learn the language, learn to trap, learn to hunt.”

Now, it’s up to supporters to teach the public the vital importance of the law, he added.

“We’re going to keep educating and we’re going to talk about things that are important to us — and most of all, we’ll never leave our children behind.”

Correction: This story has been revised to clarify that the twins’ current placement is with their maternal grandmother.