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'Our voices were heard': Tribal nations await SCOTUS decision in ICWA case

Hoskin Jr at Supreme Court
Cherokee Nation
left to right: Cherokee Nation Deputy Attorney General Chrissi Nimmo, Chairman Charles Martin of the Morongo Band of Mission Indians, Cherokee Nation Principal Chief Chuck Hoskin Jr., Chairman Tehassi Hill, Oneida Nation and Vice President of the Quinault Indian Nation Fawn Sharp.

The Indian Child Welfare Act (ICWA) was passed in 1978 after nearly 25-30% percent of Native children were taken from their homes and put up for adoption. The law was put in place to keep Native families together. It was an effort to prevent the destructive practices that were part of so-called ‘Indian Adoption Projects’ and assimilation boarding schools run by the federal Bureau of Indian Affairs.

In Brackeen v. Haaland, 23 states, the District of Columbia and 27 child welfare and adoption agencies filed amicus or ‘friend of the court’ briefs supporting ICWA in addition to a non-Native couple who adopted a Native child after making exhaustive efforts to place the child with their biological family or Native foster parents.

But several states including Oklahoma filed amicus briefs supporting the plaintiff’s case that ICWA violates their right to adopt a child based on race.

"If Congress in one enumerated power can supersede a state standard, why can't it in another?"
Justice Sonia Sotomayor

During the lengthy oral arguments, Justices asked questions about Congress's plenary or complete power over tribal nations and whether it applies to family law. Justice Sonia Sotomayor asked about the relationship tribal nations have with the United States government and how that relationship benefits the best interests of the child.

"…Children are in the U.S., they have a relationship with an Indian tribe over which we have recognized for over two centuries. Congress has plenary - plenary authority. If Congress in one enumerated power can supersede a state standard, why can't it in another," asked Sotomayor during the first part of questioning directed at the plaintiff's attorney Matthew McGill.

Justice Amy Coney Barrett also asked the plaintiff’s attorney Matthew McGill about the scope of Congress’ plenary power.

"Counsel, can I take you to the scope of the Indian power? We have described it as plenary. It's quite broad. And in area after area, we've --well, the --we've allowed Congress to far exceed anything that we would think of as just commerce in the sense of trade, you know, which is something that you floated. Are you asking us to overrule all of those precedents?"

Justice Katanji Brown Jackson also asked McGill about Congress’ plenary power when it comes to Native children after McGill conceded that tribal nations have the right to govern themselves and make their own laws.

"Congress said things like there's no resource that is more vital to the continued existence and integrity of Indian tribes than their children. They constantly cast regulations regarding children, Indian children, as a matter of tribal integrity, self-governance, existence. So why isn't that enough to bring it within the - the scope of their plenary power?"

Attorneys for the plaintiffs told justices non-Native adoptive parents are having their rights violated under the equal protection clause. They argue ICWA is preventing them from adopting an Indigenous child because of their race.

Tribal nations that were party to the case including Cherokee Nation, Navajo Nation, Morongo Band of Mission Indians, Oneida Nation and Quinault Nation argued that they are not groups based on race but political entities recognized by the United States in the Constitution, federal law and treaties.

They also told justices child welfare advocates have called ICWA a gold standard in family law.

In opening arguments, the plaintiff’s counsel argued it is impossible for ICWA to be in the best interest of the thousands of Native children in foster care in the United States. McGill told justices there are fewer than 2,000 Native foster homes available in the United States.

But Oklahoma Department of Human Services and Cherokee Nation officials told us that's not the case in Oklahoma.

According to Oklahoma DHS, there are 548 foster homes in the state that meet ICWA standards because they are tribal foster homes or DHS approved foster homes that have at least one Native parent.

Cherokee Chief Chuck Hoskin Jr. and leaders of the other four tribes represented in the case spoke to the media after oral arguments concluded.

"ICWA has kept Indian nations whole and Indian children in tribal homes so that elders and tribal citizens can pass down their language and culture so that these children can know who they are."

"...I think we all felt, you know, our voices were heard."
Chrissi Ross Nimmo, Cherokee Nation's Deputy Attorney General

Chrissi Ross Nimmo, Cherokee Nation's Deputy Attorney General was also there during the arguments. She was involved in Adoptive Couple v. Baby Girl. It was the most recent challenge to ICWA and is commonly known as the Baby Veronica case.

Veronica’s biological father is a Cherokee citizen, but Cherokee Nation was not represented in the case except through an amicus brief they filed in support of ICWA.

"I left hopeful today," said Ross Nimmo. "I think that our attorney did a really great job. The five intervening tribes were all represented by the same attorney and I think we all felt, you know, our voices were heard."

Justices are expected to rule in the case before the current term ends in June 2023. They could leave the law intact, rule narrowly striking down portions of the law or strike down the law altogether.

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Allison Herrera covered Indigenous Affairs for KOSU from April 2020 to November 2023.
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