A law central to tribal sovereignty will stand following a 7-2 Supreme Court ruling released Thursday.
The Indian Child Welfare Act (ICWA) is often referred to as the gold standard of child welfare. That's because of a key part of the law known as active efforts — which ensures every attempt must be made to reunite a Native child with their parents or guardians if they are removed from the home.
If that is not a possibility, or if parental rights are terminated, then the child must be placed with relatives. If that's not a possibility, then a Native child must be placed with a Native family to keep connection with their heritage.
It will stand despite a vigorous legal challenge in Brackeen v. Haaland.
The court "decline[s] to disturb the Fifth Circuit's conclusion that ICWA is consistent with," Congress's power under Article I of the Constitution, Justice Amy Coney Barrett wrote in the majority opinion, referencing an earlier decision.
Coney Barrett wrote that the issues in the case are "complicated," but the court rejects "all of the petitioners' challenges to the statute."
The law was put in place in the wake of disastrous effects of Indian boarding schools, which operated from 1819 through 1968. Native children were taken from their parents and communities with the intention of destroying language and cultural ties.
When boarding schools closed, though, things didn’t necessarily get better. Disruption of Native families persisted with a program operated by the Bureau of Indian Affairs in the 1950s and 1960s called the Indian Adoption Program, which encouraged non-Native couples to adopt Native children.
Opponents of the law have made several arguments to the Supreme Court. One that Congress lacks the power to legislate in the area of family law or Indian child welfare. The second is the definition of Indian is race-based and violates equal protection guarantees in the Constitution.
Tribal nations, which are political entities that like countries determine their own citizenship, disagree. Tribal nation leaders — including the Cherokee Nation Principal Chief Chuck Hoskin Jr. — say the case is trying to upend 200 years of federal Indian law and erode the trust relationship between the federal government.
"Much of this involves attempting to diminish the political nature of tribal citizenship to determine it race based… but this is simply not true," Hoskin Jr. said last fall during a conference call with reporters. "Not only is it untrue, it goes against the basic facts dating back to the founding of the United States."
Hoskin Jr. praised Thursday's decision, calling it a "major victory."
“Today, the Supreme Court once again ruled that ICWA, heralded as the gold standard in child welfare for over 40 years, is constitutional. Today’s decision is a major victory for Native tribes, children, and the future of our culture and heritage," wrote Hoskin Jr. in a statement.
The court also rejected the challenge to Congress' plenary power as decided in Morton v. Mancari.
Coney Barrett wrote in her opinion referencing the Indian Commerce Clause allows Congress to have such power.
"Finally, the “trust relationship between the United States and the Indian people” informs the exercise of legislative power," she wrote in the majority opinion.
Justice Neil Gorsuch, who wrote his own opinion in the case, reaffirmed that plenary power.
"Often, Native American Tribes have come to this Court seeking justice only to leave with bowed heads and empty hands," wrote Gorsuch. "But that is not because this Court has no justice to offer them. Our Constitution reserves for the Tribes a place—an enduring place—in the structure of American life. It promises them sovereignty for as long as they wish to keep it. And it secures that promise by divesting States of authority over Indian affairs and by giving the federal government certain significant (but limited and enumerated) powers aimed at building a lasting peace. In adopting the Indian Child Welfare Act, Congress exercised that lawful authority to secure the right of Indian parents to raise their families as they please; the right of Indian children to grow in their culture; and the right of Indian communities to resist fading into the twilight of history. All of that is in keeping with the Constitution’s original design."
Case centers on Texas couple
Brackeen v. Haaland focused on an adoption put forth by a Texas couple — the Brackeens — who wanted to adopt a Navajo child in 2016.
Several organizations filed amicus briefs supporting the Brackeens. That includes the right-wing think tank The Goldwater Institute, based in Arizona and named after the late Sen. Barry Goldwater, who supported ICWA when it was passed in 1978.
Others supporting the plantiffs include The Christian Alliance for Indian Child Welfare, Foster Parents and Pacific Legal Foundation and the Academy of Adoption and Assisted Reproduction Attorneys, as well as the states of Oklahoma and Ohio.
"Ordinarily, states decide custody disputes based on 'the best interests' of the child," former Oklahoma Attorney General John O'Connor wrote in the brief filed in the fall of 2022.
"But in disputes involving an 'Indian child,' federal law displaces that best-interests inquiry. In those cases, the Indian Child Welfare Act, or 'ICWA,' makes custody determinations turn on a child's ancestry. The results can be heart-wrenching," both O'Connor and Dave Yost, the Attorney General for Ohio, wrote.
The brief went on to explain that the law, "rips children away from the only homes they've ever known."
In April, the Oklahoma Supreme Court issued an opinion in a case involving a Muscogee child referred to as S.J.W. in court records to protect their identity, who was living with their parents on the Chickasaw Nation reservation in Oklahoma. The child’s parents appealed a state child-protection case in February 2021, claiming that Oklahoma lacked jurisdiction over their child.
Oklahoma ultimately ruled that the state has the right to take custody of a Native child if that child is living on a reservation other than their own. The state maintained that it can step in because they have agreements in place with tribes over concurrent jurisdiction on ICWA cases.
Legal experts say the ruling misunderstands the provisions of the law.
"This is a truly unfortunate opinion with absurdly weak analysis that extends the reasoning in Castro-Huerta to reservations in Oklahoma for ICWA cases involving non-member Indian children residing on reservation," wrote Kate Fort, the director of the Indian Law Clinic at Michigan State University.
Chriss Ross Nimmo, who is the Deputy Attorney General for the Cherokee Nation, said cases like the Brackeens — where custody is disputed in court — is rare.
"So we have groups, a state that has a very small Native population that doesn't work with tribes, doesn't have a lot of cases comparatively coming in saying this is harming Indian children," Nimmo said last fall during a meeting with reporters. "And then you look at the support from states on the other side that have very large native populations, who have hundreds of these cases in their state and say if it doesn't commandeer state resources, it's not based on race, and it is in the best interest of Indian children."
Native children who end up in the state foster care system are high, according to the National Council of Juvenile and Family Court Judges.
Creating a coalition to defend ICWA
Those opposing the decision say that the Indian Child Welfare Act is a race-based law that violates the rights of non-Native parents by excluding them from adopting Native children.
This recent decision marks the third time the law has been before the courts.
Tribal nations who defended ICWA in federal court included the Cherokee Nation, the Morongo Band of Mission Indians, the Oneida Nation and the Navajo Nation.
Chairman Tehassi Hill of the Oneida Nation wrote an op-ed in the Milwaukee Sentinel Journal that the law is not about preventing non-Native families from adopting Native children.
"Let me be clear, this law is not about preventing non-Native families from adopting children when the situation and best interests of the child call for it," Hill wrote. "It’s about keeping families together whenever possible; it’s about fighting for the futures of Native American children; and it’s about giving tribes a long-awaited seat at the table."
The decision could have larger implications for tribal sovereignty
Tribal nations claim the case is a political attack on tribes that could affect land and water rights, gaming and criminal jurisdiction. The existence of Indian Country could be open for debate if the Court agrees with the argument that the tribal relationship between tribal citizens and their government is not political, but is wholly based on race.
Shannon Smith of the ICWA Law Center in Minneapolis, said ICWA compels the court to look at family connections-which matter in ALL cases-not just Indian child welfare cases.
"If there is a family member who can provide a safe, a loving home, who can provide those connections, who can provide that opportunity for that child to, know who they are, where they came from, who can provide the opportunity, that's something that at a very minimum needs to be looked at, needs to be considered in a very intentional and purposeful way," Smith told KOSU. "And if it is a situation where that child can be safely with their family or their community, that needs to be recognized as something that is important to protect and something that is important to actively pursue."
Family connections were key to Hodalee and Jamie Sewell, who adopted their grandniece after a family member's rights were terminated. Jamie is Cherokee, and it was her cousin's wife who had a child that they could not care for.
Initially, the child was placed in a non-Native foster care home shortly after she was born. It wasn't until the family intervened that she was then placed with the Sewells.
They plan on raising her in her tribal community and teaching her to speak Cherokee. The Sewell's said if ICWA ceased to exist or was weakened, it would devastate families like theirs.
