SCOTUS upholds Indian Child Welfare Act

by Jun 15, 2023NEWS ka-no-he-da0 comments


One Feather Asst. Editor


In a 7-2 decision filed on Thursday, June 15, the Supreme Court of the United States (SCOTUS) upheld the Indian Child Welfare Act (ICWA) in the landmark case of Haaland v. Brackeen.  Originally approved in 1978, ICWA’s purpose is to keep Indian children within Indian families and communities.

SCOTUSblog outlines the case and how it arrived at the Supreme Court as follows, “Thursday’s ruling in Haaland v. Brackeen and three consolidated cases began as a dispute filed in federal court in Texas by Texas and seven individuals: three couples who are not Native American who had tried to foster or adopt children with Native American ancestry, as well as the biological mother of a Native American child whom one of the couples, Chad and Jennifer Brackeen, eventually adopted…the federal district court ruled for the plaintiffs, holding that ICWA is unconstitutional, but a three-judge panel of the U.S. Court of Appeals for the 5th Circuit reversed.  A ruling by the full 5th Circuit that partly affirmed and partly reversed the panel’s decision prompted four different petitions for Supreme Court review, from the Biden administration, Texas, the individual challengers, and the tribes.  The justices agreed in February 2022 to take up the case and heard arguments last November.”

Secretary of the Interior Deb Haaland, a member of the Pueblo of Laguna, said in a statement, “Today’s decision is a welcome affirmation across Indian Country of what presidents and congressional majorities on both side of the aisle have recognized for the past four decades.  For nearly two centuries, federal policies promoted the forced removal of Indian children from their families and communities through boarding schools, foster care, and adoption.”

She continued, “Those policies were a targeted attack on the existence of tribes, and they inflicted trauma on children, families, and communities that people continue to feel today.  Congress passed the Indian Child Welfare Act in 1978 to put an end to those policies.  The Act endured that the United States’ new policy would be to meet its legal and moral obligation to protect Indian children and families, and safeguard the future of Indian tribes.”

Locally, Principal Chief Richard G. Sneed said it is a victory for all of Indian Country.  “Today, the Supreme Court upheld a key law that protects the sovereignty of tribal nations and our rights to protect our children.  The Indian Child Welfare Act was a necessary response to dark periods in history where Indian children were intentionally taken from their families for the express purpose of stripping their Native identities.  We are heartened that the Supreme Court has affirmed the legal and Constitutional validity of this vital legal framework to prevent those wrongs from happening again.”

He concluded, “Today is a good day.  Protecting our children is our highest priority, and this decision ensures that our EBCI (Eastern Band of Cherokee Indians) Family Safety Program remains fully empowered to defend the most precious among us.”

Associate Justice Amy Coney Barrett delivered the opinion of the court writing, “This case is about children who are among the most vulnerable: those in the child welfare system.  In the usual course, state courts apply state law when placing children in foster or adoptive homes.  But when the child is an Indian, a federal statute – the Indian Child Welfare Act – governs.  Among other things, this law requires a state court to place an Indian child with an Indian caretaker, if one is available.  That is so even if the child is already living with a non-Indian family and the state court thinks it in the child’s best interest to stay there.”

Concurring with Barrett were Chief Justice John G. Roberts Jr., Associate Justice Sonia Sotomayor, Associate Justice Elena Kagan, Associate Justice Neil M. Gorsuch, Associate Justice Brett M. Kavanaugh, and Associate Justice Ketanji Brown Jackson.

Dissenting were Associate Justice Clarence Thomas and Associate Justice Samuel A. Alito Jr.

In his dissenting opinion, Justice Thomas wrote about ICWA, “It regulates child custody proceedings, brought in state courts, for those who need never have set foot on Indian lands.  It is not about tribal lands or tribal governments, commerce, treaties, or federal property.  It therefore fails equally under the Court’s precedents as it fails under the plain text and original meaning of the Constitution.”

Information from the House Natural Resources Committee states, “Prior to the bipartisan passage of ICWA in 1978, American Indian and Alaska Native children were systematically separated from their parents, extended families, and communities by state and private adoption agencies, often without evidence of harm or neglect.  An overwhelming 85 percent of these children were placed in non-Native homes, isolating them from their culture and community support systems.”

Others in government voiced their pleasure at ICWA being upheld.

U.S. Attorney General Merrick B. Garland said in a statement, “The Justice Department is committed to honoring tribal sovereignty and protecting Indian children and families.  For nearly 45 years, the Indian Child Welfare Act has helped protect children from being unnecessarily separated from their parents, extended family, and tribal communities.”

He added, “I am pleased that today’s Supreme Court decision in Haaland v. Brackeen rejected this challenge to the Indian Child Welfare Act.  The Justice Department vigorously defended the statute before the Supreme Court and will continue to support the Indian Child Welfare Act and do everything in our power to protect tribal communities and affirm tribal sovereignty.”

Rep. Raul M. Grijalva (D-Ariz), the ranking member on the House Natural Resources Committee, said in a statement, “The court made the right decision today not just for Native children and families, but for tribal sovereignty at large.  ICWA is considered the gold standard for child welfare across the board and today’s decision rightfully upholds that standard for Native youth and future generations.  Keeping Native children in their own communities with access to their traditional languages and cultures is critical to addressing the intergenerational trauma that this country forced upon Indian Country for far too long.”

Rep. Teresa Leger Fernandez (D-N.M.), ranking member on the House Indian and Insular Affairs Subcommittee, said in a statement, “This decision reinforces what every tribal member knows: that vulnerable Native children belong where they will grow up sharing in the rich language, culture, and heritage of their tribal and tribal families.  The decision also reaffirms that tribal nations are sovereigns which enjoy a unique and special trust relationship with the federal government.  Congress has the power and responsibility to preemptively legislate on Indian affairs so we can reverse the harm and historical trauma inflicted on tribal nations.”