Tribal leaders and experts in federal Indian law say that misunderstands both how the Indian Child Welfare Act and tribal nations function.

“To say that this is all just about race or racism really undermines the separate sovereignty that these governments have and their separate identities as tribal nations,” says Elizabeth Reese, an assistant professor of law at Stanford University and a scholar of tribal and federal Indian law.

The case isn’t just about the welfare of Native children, Reese and others say. They view it as an attack on tribal sovereignty.

“These preferences are just that – they’re preferences,” Reese said. “They still allow for the adoption of children by non-Indian families. The law itself is written to allow judges who are hearing cases involving the placement of Indian children to exercise their discretion about when it makes sense to depart from these placement preferences.”

With this legal case, that future hangs in the balance. If the Supreme Court were to rule that tribes are racial groups rather than political entities and that the law is therefore unconstitutional, much of the legal basis for tribal sovereignty would be at risk, Reese said.

“If that is the case for the Indian Child Welfare Act, then there is little to say that that’s not the case for tons of other statutes across the federal code,” she said. “For example, [those codes] create health care for Indian persons under the Indian Health Service. Is that an impermissible racial discrimination? What about the holding of lands by the federal government in trust for specific Indian tribes?”