Kelly and Nate Reyelts have fostered about 50 children. Kelly is a teacher and Nate is a physician assistant. They have been raising their seven biological children in their home in a small town in Minnesota. So with foster children, they mostly accepted short-term placements — either emergencies while the local Department of Children and Families found a longer-term home for the kids, or respite care for those who were already in foster homes.
But in 2022, they told the department they could take in a child for a longer period. With the encouragement of their church pastor, they had been trying to do more.
Less than two weeks later, they got a call about a baby in the neonatal intensive care unit. He had been born substance exposed and was experiencing withdrawal symptoms and would probably have complex medical needs. Would they be willing to accept him as a permanent placement? The mother was not able to care for him, and no relatives had stepped up. Oh, and also, the baby boy had a twin sister who “likely won’t make it” — she had an Apgar score of zero — but would they take her, too?
I wish I could tell you this story had a happy ending. But because these twins were born to a mother who is Native American, it does not.
The good news is that the baby girl did survive. And for 16 months, the Reyelts family, in Kelly’s words, “loved on” these two babies. The couple gave them all the attention the babies needed and deserved. They took them to see specialists at the Mayo Clinic in Rochester, made sure they got medicine several times a day. Though they experienced developmental delays, the twins started hitting their milestones.
Then in August of 2023, the county’s Department of Human Services announced that the mother’s cousin would be taking the children. The cousin had not met the babies before, she had never before expressed interest in caring for them, and she lived 350 miles away on the Red Lake reservation — several hours not only from the Reyelts family, but also from the children’s medical specialists.
Perhaps most concerningly, the children’s mother did not want this cousin caring for her children. Her older daughter was already in the custody of this woman, and the mother thought the girl was being mistreated. She hoped her babies could stay with Kelly and Nate.
Alas, the Red Lake Nation would not have it. A month later, the children were ripped away from the only parents they had ever known without any kind of transition plan. Thanks to the Indian Child Welfare Act of 1978, tribal governments have a say over where children with the slightest trace of Native American blood are placed if there’s ever a dispute over custody.
In practice, this can mean that if parents voluntarily put such a child up for adoption, tribal governments can block that child’s placement with a non-Native American family. Even if that child has never set foot on a reservation. Even if the mother thinks a non-Native American family might provide a better home. And even if a non-Native American family promises that they will expose the child to Native American culture, as the Reyeltses did.
The act also created a higher evidentiary standard for child maltreatment, meaning Native American kids have to suffer more abuse before a child welfare agency intervenes or removes them.
How, you might wonder, is this constitutional? Don’t we live in a country where all children, regardless of race, are supposed to be protected from abuse and neglect? Don’t we live in a country where all children, regardless of race, are entitled to be placed in safe, loving and permanent homes when their parents cannot or will not care for them?
No. We do not.
Not only does the federal government allow Native children to be treated according to a lower standard, but many states have passed their own laws that mirror ICWA. In Minnesota, that law is the Minnesota Indian Family Preservation Act, or MIFPA, which created even more guidelines and rules around foster care placement than the federal law required.
There have been two major Supreme Court challenges to the Indian Child Welfare Act — one in 2013 and one in 2023. Both were decided on technical, not substantive grounds. The court has never taken up the fundamental question of whether ICWA violates the equal protection clause. But in the most recent case, Brackeen v. Haaland, Justice Brett Kavanaugh noted that if the placement of a child in foster care is denied because of the child’s race or the parent’s race, even if those placements are in the child’s best interests, “those scenarios raise significant questions under bedrock equal protection principles and this Court’s precedents.”
The Reyelts family took their case to court in Minnesota immediately after the twins’ removal. What happened there was almost as outrageous as the fact that ICWA and MIFPA have remained on the books. The district court ruled that the Reyeltses’ “lack of understanding about the importance of (the twins’ Indigenous) heritage” rendered them unfit to participate in the case. What was the evidence for this? According to the court, it was their objections to ICWA and MIFPA. Indeed, the court ruled that simply believing those laws to be unconstitutional is itself “indicative of appellants’ (negative) ‘attitude toward the importance of the children’s tribal identity,’” and so their participation was contrary to the children’s best interests.
Moreover, the Reyeltses’ “‘strong attachment to the children has created a bias that would only hinder and harm the progression of the children’s protection proceeding,’ because ‘they could not see the value in any other placement for the children.’” The Minnesota Supreme Court upheld this outrageous ruling.
What in the world is going on here? The fact that these foster parents who cared for medically fragile babies no one else wanted for 16 months and objected to them being placed with strangers hundreds of miles from anyone they knew and from the doctors overseeing their care — all over the objections of their mother — raise concerns about whether the Reyeltses care is what’s in the best interests of these children?
Shouldn’t it raise concerns about whether the tribe, the child welfare agencies and the courts care? These entities, tragically, seem to not see children; they just see race.
The lawyers for Kelly and Nate are filing their case with the U.S. Supreme Court this week, objecting to the law not only on equal protection grounds but also asking the court to weigh in on this infringement of the couple’s First Amendment rights — the state is obviously engaging in viewpoint discrimination here. How can Kelly and Nate’s objecting to a law’s constitutionality in and of itself (let alone their attachment to the children) render them unfit to have standing?
In the almost three years since the twins were removed from their home, Kelly and Nate have seen them twice on Zoom. The children were removed in the middle of the night from the cousin after a few months and then placed with their grandmother. It’s not clear what happened or how these kids are doing now.
Kelly and Nate are heartbroken. “This has been a nightmare for our family,” Kelly tells me. “All we wanted to do was keep these children loved and protected.” But now they believe “it’s not just about us and our family. We are advocating for the twins and children like them who are harmed by these race-based laws.”
The Supreme Court has made clear that it does not approve of racial discrimination, no matter the reason. The justices should grant the Reyeltses’ request for a hearing when their petition is filed.
The Trump administration has worked to dismantle race-based laws. When it comes time to decide whether the government will defend ICWA, the administration should stand down. And maybe, finally, we can put an end to the most racist law in America.