Two Martin County foster parents are getting another audience in front of the Minnesota Supreme Court Tuesday, after arguing last fall that a nearly 50-year-old law that prevented them from adopting two Native children is unconstitutional.

If the couple succeeds in their challenge, it could drastically alter the constitutionality of the law, which is meant to preserve tribal sovereignty and address decades of Native children being severed from their cultures. 

The twins at the center of this case were initially placed with foster parents until a lower court ruled they should be placed with a relative. The white foster couple, Kellie and Nathan Reyelts of Fairmont, wanted to adopt the children and claim they’ve been prevented from doing so because of the Indian Child Welfare Act, or ICWA, and a state companion law known as the Minnesota Indian Family Preservation Act, or MIFPA. They say the law is unfair.

The couple says the placement preferences required under the two laws — that the children be placed with an immediate family member or a foster home approved by the tribe — violate their 5th and 14th Amendment rights.

The twins were removed from the Reyelts’ home after the Red Lake Nation, the tribal nation their mother is from and which they are eligible to become citizens of, said they should be placed with an aunt. The twins are now living with their grandmother and have been since September of 2023. An older sibling also resides with them.

Two lower courts already ruled against the Reyelts’ claims that the two laws discriminate against them in the adoption process because of their race.

Last fall, they took their case to the Minnesota Supreme Court. Before the court ruled, they asked for a second hearing — Tuesday’s — to make the same constitutional claims and add two more issues: Did the district court err in denying their motion for permissive intervention, and did the district court err in dismissing their third party custody petition? 

The constitutional issue being considered again: Are the placement preferences of ICWA and MIFPA unconstitutional? The placement preference is with an immediate family member or a placement preference chosen by the Red Lake Nation.

Joseph Plumer, the attorney for the Red Lake Nation, said the reason the plaintiff’s attorneys are bringing this case is simple — they want to bring this case before the United States Supreme Court.

During last fall’s oral arguments, Associate Justice Anne McKeig, herself a descendant of the White Earth Band of Ojibwe, directly asked Plumer if he thought it was their intention.

“Counsel, can I ask you a question that’s probably going to be controversial, but I’m going to ask it anyway. Does there seem to be some — gamesmanship may not be the right word — but do you see this court as an avenue to try to get the issue of constitutionality of the Indian Child Welfare Act before the United States Supreme Court?” McKeig asked.

“Yes,” Plumer responded. “That’s exactly what the appellants are trying to do in this case.”

Shannon Smith, the executive director of the ICWA Law Center, which provides legal services and advocacy to Native families impacted by the child protection system, agrees.

“They are looking, I think, for something that somehow can be distinguishable from the decision in Haaland v. Brackeen,” Smith said.

She is referring to the case involving a white Texas couple who had successfully adopted a Navajo child. Their attorneys, including Mark Fiddler, a citizen of the Turtle Mountain Band of Ojibwe and the attorney representing the Reyelts, argued the laws were race-based and unconstitutional. Even though they lost the case, the court found that the petitioners’ claims of equal protection lacked standing, which is why the Reyelts can challenge the placement and claim discrimination.

Fiddler declined to comment to MPR News.

Smith says foster parents are an important part of the system of keeping children safe and providing stability. But, their role is temporary.

“You’re temporarily stepping in to care for a child where the intent is for the child to be reunified with a parent or place the relative,” she said.