By Nancy Marie Spears, The Imprint
The Minnesota Supreme Court has ruled in the case of two white foster parents that they do not have standing to argue the bedrock Indian Child Welfare Act violated their constitutional equal protection rights. The federal law known as ICWA, and a state version of the law, prioritizes tribal children’s connection to kin.
The justice’s ruling affirmed the state and Red Lake Nation officials, who maintain the lower courts followed state and federal laws accordingly when they removed young twins from the foster parents’ home and placed them with an Indigenous relative. The state’s high court remanded the case back to the district court.
“We do not address appellants’ equal protection arguments — on which we granted review — because appellants are not parties to the case,” the court ruled.
The case involves 3-year-old Red Lake Nation twins, identified in court documents as Ki. K. and Kh. K. As medically fragile newborns, they were temporarily placed with Kellie and Nathan Reyelts of Fairmont, who are biological parents of seven children and have fostered dozens of other children since 2010.
A year and a half later — following the guidance of experts and intervention by the children’s tribe — the twins were moved to the home of an aunt where their half-sister also lived. That foster care placement was the preferred option under the legal requirements of ICWA and the Minnesota Indian Family Preservation Act, known as MIFPA.
Although the laws identify tribal members as citizens of sovereign nations and not as a different race, the Reyelts argued that the foster parents were discriminated against when the children were removed, because they are not Native.
The Reyelts’ co-counsel, Mark Fiddler, has dedicated much of his legal career attempting to dismantle ICWA. He has previously argued his case, unsuccessfully, before the U.S. Supreme Court and now vows to renew the challenge.
“Obviously, this is a very disappointing decision,” Fiddler, a member of the Turtle Mountain Band of Chippewa Indians, wrote in an email. He said the Reyelts “provided exceptional care to these two medically fragile twins,” and they would have continued to care for them had Red Lake Nation not intervened, leaving the foster parents “absolutely no means of challenging the removal of the twins based on race.”
“This decision makes the 14th Amendment meaningless for children,” he wrote, adding: “We will see if the United States Supreme Court agrees.”
An attorney for the children’s mother, Ryan Gustafson, declined to comment on the ruling.
The Red Lake Nation did not respond to a request for comment by press time.
The twins have remained with relatives since leaving the Reyelts home, according to court documents. They went from their maternal aunt’s home in 2023 to their maternal grandmother’s nine months later.
According to the most recent report to the court from guardian ad litem McKenzie Borth, in 2024, “the twins were thriving in their grandmother’s care.” The grandmother is a member of the Red Lake Nation who lives close to their doctors and who also cares for their half-sister. The twins have weekly visits with their biological mother, who lives in the same neighborhood, the children’s guardian reported.
That is as it should be, say ICWA champions watching the case.
“The Minnesota Supreme Court’s decision reflects the Court’s understanding that considering family and tribal connections is in the best interests of Indian children.”
— Shannon Smith, ICWA Law Center
“We’ve had other opponents of ICWA and tribal sovereignty looking at whether or not they could bring cases to try and tear down the protections of the Indian Child Welfare Act for Native children and families,” said David Simmons, spokesperson for the National Indian Child Welfare Association. “And in almost all these cases, you’ll see that the courts recognize that these foster or adoptive parties often don’t have standing — yet they continue to bring these cases over and over again.”
Shannon Smith, executive director of the ICWA Law Center in Minneapolis, agreed.
“The Minnesota Supreme Court’s decision reflects the Court’s understanding that considering family and tribal connections is in the best interests of Indian children,” she said in an email.
Young lives, many courts
The Reyelts case was first filed in 2023 district court, and worked its way through the court of appeals before reaching the Minnesota Supreme Court.
In a 49-page ruling released Wednesday, Chief Justice Natalie Hudson wrote that the lower district courts had rightfully denied the Reyelts’ multiple attempts to intervene in the case and to transfer custody of the children back to their home. Therefore, she concluded, they lack standing in the case moving forward.
The plaintiffs had previously claimed that ICWA’s placement preferences for Indigenous children are “discriminatory” and that “the children were harmed by ICWA by being removed from a loving home where they were thriving and attached to their caregivers.”
According to court documents, the Reyelts’ argued that the district court had “retaliated” against them, “using their challenges to ICWA and MIFPA as factors that weighed against them” in their motion to intervene as parties to the case.
The high court disagreed. “We do not perceive that determination by the district court to be evidence of retaliation,” the ruling states.
The Supreme Court ruling also clarified the position of the twins’ mother, identified as L.K. in court documents.
The Reyelts had earlier alleged in court documents that she wanted the foster parents to raise her children instead of the aunt. But she later filed an amended affidavit, court documents show, stating that she supported Ki. K. and Kh. K. being placed with their grandmother.
“There is no dispute that appellants provided excellent care to the twins while they were living in appellants’ foster home,” the Supreme Court ruling states. “Appellants were diligent and loving foster parents. Among other things, they created a Native American cultural plan to connect the children with their tribal heritage and facilitated visits with the twins’ biological mother.”
However, the high court noted: “The district court found that appellants’ actions towards the twins’ mother raised questions about their judgment, given that she was ‘seemingly not in a place at that time to offer a clear judgment regarding the children’s placement.’”
Long battle to preserve ICWA
Special interest groups have long sought to dismantle ICWA on the basis of race. These include the conservative Arizona-based think tank, the Goldwater Institute, which has argued against the law in various court settings over a dozen times, and Gibson Dunn & Crutcher, a corporate law firm that has battled tribes over water, land and gaming rights. Both groups provided legal support for plaintiffs involved in the most recent constitutional challenge to ICWA that reached the U.S. Supreme Court, Brackeen v. Haaland.
Fiddler has pushed back against criticism of the outside interests backing his ICWA challenges.
“Who pays for the lawyers, who offers pro bono help, these are all issues that are red herrings if the idea is somehow the clients are mere tools for larger, more sinister interests,” Fiddler stated in 2024. “Any person or interest that supports us in this cause is a friend of ours, which is why we are proud to call Goldwater a friend in this (despite the fact I am a staunch liberal).”
Those in support of ICWA maintain that the law is not race-based, but instead hinges on the government-to-government relationship between tribal nations and the U.S. Hundreds of tribes, Indigenous rights advocates, state attorneys general and child welfare leaders nationwide have fought to preserve the 45-year-old law, established to remedy generations-long assaults on Indigenous families by the federal government.
Representatives of the ICWA Division of the Minnesota Guardian ad Litem Program applauded the Minnesota Supreme Court decision Wednesday, noting that it continues that effort.
“This opinion leaves intact and preserves the protections of the Indian Child Welfare Act and the Minnesota Indian Family Preservation Act helping to keep Indian children connected to their families, extended families, and tribal nations,” the group stated in an email.
