Adoption Across Race: Disparate Treatment of Native Americans and African Americans

Posted on Categories Family Law, Legal Scholarship, Race & Law

David Papke has a new paper on SSRN that contrasts the laws governing the adoption of Native American and African American children by whites. Once rare in this country, “transracial” adoptions became common over the latter decades of the twentieth-century. Such adoptions sparked concerns within both Native American and African American communities, but the legal system responded to the concerns quite differently. On the Native American side, the Indian Child Welfare Act of 1978 gave preference to Native Americans in custody contests over Native American children and undercut state-court jurisdiction over such proceedings in favor of tribal courts. But, on the African American side, the Howard M. Metzenbaum Multiethnic Placement Act has established a “color-blind” standard for adoptions. David observes, “Race is not supposed to be a consideration when whites seek to adopt African American children, and it has become increasingly common for whites to ‘adopt across race.’” (9)

What explains the different legal treatment of the two types of transracial adoption? David suggests two answers. The “formal” answer “involves the unique status of Native Americans under the law of the United States,” which regards tribes as sovereign nations of sorts. But a “more fundamental explanation” may have something to do with the unique force of racist attitudes towards African Americans and related negative beliefs regarding their parenting abilities.

David’s paper is entitled “Transracial Adoption: The Adoption of Native American and African American Children by Whites.”

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