WASHINGTON, D.C. – The U.S. Supreme Court on June 15 rejected an attack on the Indian Child Welfare Act, long-championed by tribes as a means of preserving their families and traditions.
“Today’s decision is a welcome affirmation across Indian Country of what presidents and congressional majorities on both sides of the aisle have recognized for the past four decades,” U.S. Secretary of the Interior Deb Haaland said of the high court’s 7-2 decision.
Enacted in 1978, the federal ICWA legislation gives Native American families priority in foster care and adoption proceedings involving Native children. Three white families, the state of Texas and a small number of other states challenged the act, claiming it is based on race and therefore unconstitutional under the equal protection clause.
“Today’s decision is a major victory for Native tribes, children and the future of our culture and heritage,” Cherokee Nation Principal Chief Chuck Hoskin Jr. said. “It is also a broad affirmation of the rule of law, and of the basic constitutional principles surrounding relationships between Congress and tribal nations. We hope this decision will lay to rest the political attacks aimed at diminishing tribal sovereignty and creating instability throughout Indian law that have persisted for too long.”
The ICWA challenge was argued before the Supreme Court for more than three hours on Nov. 9. The justices reviewed Brackeen v. Haaland, initiated by Texas residents Chad and Jennifer Brackeen, who adopted a Native American child after a prolonged legal fight with the Navajo Nation and are trying to adopt the boy’s 5-year-old half-sister, known in court papers as Y.R.J. Their attorney, Matthew McGill, argued that the ICWA’s Native preference “flouts the promise of equal justice under the law.”
Indian law experts have asserted that legal precedent clearly defines tribal membership as a political, not racial, designation. In the SCOTUS opinion, Justice Amy Coney Barrett noted the “issues are complicated,” but the “bottom line is that we reject all of petitioners’ challenges to the statute, some on the merits and others for lack of standing.”
Justice Brett Kavanaugh, who also favored the tribes, noted in a separate opinion focused on the preferences for Native foster and adoptive parents that in his view, “the equal protection issue is serious.”
“Under the Act, a child in foster care or adoption proceedings may in some cases be denied a particular placement because of the child’s race – even if the placement is otherwise determined to be in the child’s best interests,” he wrote.
Prior to the Indian Child Welfare Act, it’s estimated that between 25% and 35% of Native American children were being taken from their homes and placed with mostly white adoptive families, in foster care or institutions, according to experts.
As one of the case’s four defending tribes, the Cherokee Nation sent a delegation to Washington, D.C., for the November arguments. A joint statement from the CN and other defending tribes lauded the court for “once again” demonstrating that it “understands the legitimacy of ICWA and what it means for tribes, families and children.”
“By ruling on the side of children’s health and safety, the U.S. constitution and centuries of precedent, the justices have landed on the right side of history,” the tribes’ news release states. “With these latest political attacks on ICWA now behind us, we hope we can move forward on focusing on what is best for our children.”
Justices Clarence Thomas and Samuel Alito were the two dissenting votes. Alito wrote that the decision “disserves the rights and interests of these children.”
According to the Associated Press, Matthew McGill, who represents the Brackeens, said he would press a racial discrimination claim in state court.
“Our main concern is what today’s decision means for the little girl, Y.R.J . – now 5 years old – who has been a part of the Brackeen family for nearly her whole life,” McGill said in a statement.
Many tribes, organizations, child welfare experts, lawyers and others swiftly weighed in on the long-awaited SCOTUS decision.
• “Our nation’s painful history looms large over today’s decision. In the not-so-distant past, Native children were stolen from the arms of the people who loved them.” President Joe Biden
• “After decades of the forced removal of our Native children from their homes, this is a small win in the larger fight to maintain tribal sovereignty and cultural continuity for generations to come.” Judith LeBlanc, Native Organizers Alliance executive director
• “Tribes and their advocates did not find five votes to reject a broadside attack on the Indian Child Welfare Act – they found seven. That’s good news for tribes today. But the court didn’t decide whether ICWA violates the Equal Protection Clause. That means Brackeen is unlikely to be the last chapter in the ongoing fight over tribes’ right to have a say in the welfare of Indian children whose parents cannot care for them.” Ben Kappelman, Dorsey & Whitney law firm
• “The Indian Child Welfare Act’s focus on preserving family and community ties exemplifies the best practices of child welfare. By keeping children close to their community and recognizing the importance of kinship connections, ICWA’s practices and policies ensure that children benefit from the support and cultural practices that are key to continuity in their lives.” Teresa Rafael, Children’s Trust Fund Alliance executive director
• “The court rejects all of the challenges to the Indian Child Welfare Act, ‘some on the merits and others for lack of standing.’ This means that the ICWA survives entirely intact. The ICWA seeks to keep Native American children with Native American families, and no small part because historically the government has removed native children from their families in attempt to re-educate them and stripped of their culture and heritage.” Kirk McGill, Hall Estill law firm
• “The Indian Child Welfare Act is consistent with best practice and child welfare’s shift towards strengthening families and promoting family preservation. By prioritizing the placement of children within their families, communities or Tribal Nations, we also prioritize stability and the opportunity to maintain continuity in schools, health care and community participation.” Jody Levison-Johnson, Social Current president and CEO
• “We are overcome with joy that the Supreme Court has upheld the Indian Child Welfare Act, which is widely regarded as the gold standard of child welfare. One thing is certain: ICWA is crucial for the safety and well-being of Native children and families and the future of Native peoples and Tribal Nations. The positive impact of today’s decision will be felt across generations.” The Protect ICWA Campaign.
