When Hodalee Sewell heard about Thursday's U.S. Supreme Court decision upholding the Indian Child Welfare Act, he said simply, "we won."
He and his wife Jamie are about to adopt their grandniece, whom we're calling Noni in this story to protect her identity. Hodalee is Muscogee and Jamie is a citizen of the Cherokee Nation.
Noni came into their life after her birth mother struggled with addiction and could not care for her. Noni was first placed in a non-Native foster home until her mother's family stepped in and said she is Cherokee and must be placed with family first. Enter the Sewells.
"I just, I owe it to the next generation that she have the opportunity to learn about who she is," Hodalee Sewell told KOSU.
Now, that protection will remain intact for other Native families who want to adopt relatives or want to make sure their families stay together.
The Indian Child Welfare Act, passed in 1978, is considered central to tribal sovereignty by Indian law experts. It will stand following a 7-2 Supreme Court ruling released Thursday. Justice Amy Coney Barrett, whose position on the case was seen as pivotal to it being either struck down or held, wrote the majority opinion and rejected the petitioner's challenge to the law.
"The bottom line is that we reject all of petitioners' challenges to the statute, some on the merits and others for lack of standing," she wrote.
Attorney and playwright Mary Kathryn Nagle, wrote an amicus brief defending the law. She said she always thought that a victory would be whether or not Barrett joined the majority opinion. She said she's been a refreshing addition to the court.
"A lot of liberal people want to attack her…but the reality is that since joining the court, she has written better decisions in terms of tribal sovereignty than Justice Ginsburg and who she replaced," Nagle said. Barrett sided with the majority on another case argued in the 2021 term called Denezpi v. United States, which held that "The double jeopardy clause does not bar successive prosecutions of distinct offenses arising from a single act, even if a single sovereign prosecutes them."
Nagle said she never thought a majority opinion would include Justice Brett Kavanaugh, especially after the opinion he wrote in Castro-Huerta v. Oklahoma, which limited the landmark McGirt v. Oklahoma decision.
She said even though this is a win, she still feels that last year's Castro-Huerta decision is a threat because it does grant states some authority over tribal nations.
Oklahoma was one of the state's that filed an amicus brief supporting the Brackeens.
"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.
Justice Samuel Alito and Justice Clarence Thomas were the two dissenters in this case.
Alito wrote that the court, "identifies what is most important about these cases: they are 'about children who are among the most vulnerable.' But after that opening nod, the Court loses sight of this overriding concern and decides one question after another in a way that disserves the rights and interests of these children and their parents, as well as our Constitution's division of federal and state authority."
The Goldwater Institute, a conservative think tank based in Arizona who filed an amicus brief in the case and who have been seen as one of the players seeking to undo federal Indian law also expressed their disappointment with the court's decision with a statement on their website.
"While it’s shameful that the Court would turn a deaf ear to the cries of our country’s most at-risk children, it is at least gratifying that the Court left open the door to future lawsuits challenging the race-based injustices caused by ICWA."
Relief in Indian Country
When Sara Hill, Attorney General for the Cherokee Nation, saw the US Supreme Court's decision, she was relieved.
"We have so many Indian children in custody, and we have so many foster parents and grandparents and people whose lives are tied up in the court system in different ways," she said about current cases within the Cherokee Nation's court.
"And because of the Indian Child Welfare Act, you know, these families have this protection that they so desperately need."
The Cherokee Nation was one of four tribal nations defending the law. This is the third time the law has gone before the U.S. Supreme Court, and the second time the Cherokee Nation was involved.
Cherokee Nation was also involved in the 2013 case Adoptive Couple v. Baby Girl. That case focused on a Cherokee father who was seeking custody of his daughter after he said he was not properly notified about her adoption. The court sided with the adoptive couple, but left the law mostly intact.
The Brackeen v. Haaland case involved a more direct challenge to ICWA. The court considered several questions on Congress’s power over tribal nations, equal protection and commandeering, but ultimately cited over a century of precedent classifying tribes as a political entity rather than a racial group in their ruling.
Retired Judge John Romero, Jr. has presided over ICWA cases for more than 17 years and has served on the New Mexico Tribal-State Judicial Consortium. He's also a member of the National Council of Juvenile Family Court Judges.
" The Supreme Court has stated in the past that precedent, you know, is what they rely on," Romero said. "And we've seen, of course, where they've departed from that and the Indian Child Welfare Act, you know, passed in 1978 and has been the law for a long time.
Romero continued, "ICWA keeps families together rather than tearing them apart."
Tribal nations defending the case say this is a major victory for Native families and a victory for federal Indian law.
"Our heads were not bowed," Hill said, referring to Justice Neil Gorsuch's sweeping and detailed concurring opinion that added context to why the law needed to be left intact. Gorsuch also authored the majority opinion in McGirt v. Oklahoma nearly three years ago that was seen as a huge win for tribal nations.
"Often, Native American Tribes have come to this Court seeking justice only to leave with bowed heads and empty hands," Gorsuch wrote in the concurrence along with Justice Sonia Sotomayor and Justice Ketanji Brown Jackson.
"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."
Moving forward
The decision could have an impact on an Oklahoma Supreme Court ruling that said ICWA doesn't apply to a case where a child is not living on their own reservation.
"There's a motion to reconsider pending in that case," Hill said. "I think it's going to add some fuel to that motion, too, make them think about granting it and at least having some of the additional guidance that the court has provided on the analysis under the Indian Child Welfare Act and how these provisions should be read."
The Sewells said they breathed a sigh of relief.
"You're going to have to find another area to try to strong-arm Indian people, because this is one of the things that strikes right at the heart of it — our children and our next generation," Hodalee said.
He and his wife are expecting to formally adopt Noni later this month and have invited their state and ICWA caseworker to a naming ceremony for their new daughter.
