- By Kaili Berg, Elyse Wild, Brian Edwards
The United State Supreme Court today issued a ruling that protects tribal sovereignty and the rights of Native American families when it comes to adoption and foster-care proceedings involving Native children.
The court’s opinion in the case Haaland v. Brackeen upheld the federal Indian Child Welfare Act (ICWA), a 1978 law that gives tribal governments exclusive jurisdiction over Native children who live on reservations. Considered to be the “gold standard” of child welfare policy, ICWA has protected the continued existence of Indian tribes and their most vital resource — Indian children — for 45 years.
By a 7-2 margin, the court today reinforced ICWA by affirming an appellate court en banc ruling that challenged some aspects of the law’s constitutionality.
The nation's highest court found that ICWA does not discriminate on the basis of race and does not impose an undue burden on states. The court did not rule on the merits of two additional claims — an equal protection challenge to ICWA’s placement preferences and a challenge to ICWA’s provision allowing tribes to alter the placement preferences—because the Brackeens and other petitioners did not have standing to raise them.
“The issues are complicated,” Justice Amy Coney Barrett wrote in the majority opinion. “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.”
Barrett was joined by Chief Justice John Roberts and Associate Justices Neil Gorsuch, Sonia Sotomayor, Elena Kagan, Brett Kavanaugh and Ketanji Brown Jackson.
In adopting ICWA, “Congress exercised (its) 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,” Gorsuch wrote in a concurring opinion.
Justices Clarence Thomas and Samuel Alito filed dissenting opinions.
On social media and across Indian Country, Native Americans and their advocates and allies cheered the ruling.
“Today’s decision is a major victory for Native tribes, children and the future of our culture and heritage,” Cherokee Nation Chief Chuck Hoskins wrote on Twitter. “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.”
“I stand alongside Tribal Nations as they celebrate today’s Supreme Court decision,” President Joseph R. Biden said in a statement. “In the not-so-distant past, Native children were stolen from the arms of the people who loved them. They were sent to boarding schools or to be raised by non-Indian families—all with the aim of erasing who they are as Native people and tribal citizens. These were acts of unspeakable cruelty that affected generations of Native children and threatened the very survival of Tribal Nations. The Indian Child Welfare Act was our Nation’s promise: never again.”
Judith LeBlanc, board chair of NDN Collective, called today’s Supreme Court’s decision “a small win in the larger fight” to maintain Tribal sovereignty and cultural continuity for generations.
“While today’s victory is to be celebrated, this will not be the last time a case against Tribal rights will be brought to the courts,” LeBlanc said in a statement. “Haaland V. Brackeen is part of a larger campaign to undermine Tribal sovereignty and gut the legal infrastructure that codifies Tribal sovereignty.”
Attorney Samantha Skenandore (Ho-Chunk Nation) of Quarles and Brady LLP said the decision reinforces the foundation of tribal sovereignty: tribal membership.
“One of the pillars of sovereignty is to make laws and be governed by them,” Skenandore told Tribal Business News. “And that doesn’t apply when your children are governed outside of the tribe. This [decision] means that tribes get to decide who their membership is based on whatever they decide, and they get to exercise their sovereignty.”
For Skenandore, the ruling is also deeply personal — twenty years ago, she became a foster mom to three teenage girls from her tribe after their mother passed away from drug use. After being partially raised partially by their non-Native father and being placed in 10 different foster homes, ICWA protections allowed the tribe to take jurisdiction over the girls and place them with Skenandore. She re-introduced the girls to the Ho-Chunk tribe and their culture. Today, Skenendore has seven grandkids through her foster daughters.
“We often talk about how thankful we are that we got to be together, and all three of them have said, ‘I think we would have died by suicide had we not been placed with you,’” Skenendore said. “I feel relieved, on a personal level, I am so relieved that sovereignty, at least for now, is upheld. This is a huge breath of fresh air.”
Under ICWA, caseworkers in state foster care systems are required to make “active efforts” to keep Native children with their biological family or within their respective tribe, if they are enrolled or acknowledged by a tribe. If a child in question cannot be placed within the family, caseworkers must give preference to placing recognized Native children in other homes identified as Native American or American Indian.
Congress passed the Indian Child Welfare Act (ICWA) on November 8, 1978, after a national effort to address the abusive and widespread practice of removing American Indian children from their homes and placing them with non-Native white families through adoption or foster-care placement.
In passing ICWA, Congress moved to protect the best interests of Indian children and promote the stability and security of Indian families. These preferences do not mean that a child must be placed in a Native home, but the process does recognize tribal sovereignty and defers to its authority.
Opponents of ICWA have argued the law discriminates on the basis of race and prioritizes the interest of tribes over the needs of the Native children it is supposed to protect.
The Haaland v. Brackeen lawsuit was brought by the state of Texas and three non-Native couples that have sought to adopt or foster three Native children, with one couple being supported by the mother of a child that was adopted.
In the original 2018 lawsuit, a federal district court in Texas ruled that ICWA violated the Constitution. The broadly criticized decision led to an appeal in the Fifth Circuit, where a three-judge panel reversed the lower court’s ruling. The appellate court’s decision affirmed ICWA’s constitutionality, recognizing tribal nations’ unique political status and Congress’s unique obligations toward Native Americans.
In November 2019, the Fifth Circuit agreed to conduct an en banc review by the entire circuit court of the three-judge panel’s decision. That review upheld the authority of Congress to enact ICWA, but also found some sections of the law to be unconstitutional.
In September 2021 parties on both sides of the litigation asked the Supreme Court to review the Fifth Circuit’s en banc decision. The Court granted the petitions in February 2022, and oral arguments were heard in November 2022.
There was widespread support from an array of state and national organizations for Tribal nations and representatives in support of ICWA. A total of 21 briefs were filed in support of ICWA by the vast majority of federally recognized tribes as well as numerous Native advocacy groups, Indian law professionals, Congressional representatives and child welfare advocates.
In all, the briefs represent the support of ICWA from nearly 500 tribes, more than 60 Native organizations, 23 states and the District of Columbia, 87 members of Congress, over 30 Indian law professors, 27 child welfare and adoption organizations and others.
There has also been support for ICWA at the state level. Over the past several months, some states passed their own ICWA laws, but those laws must offer additional benefits that do not change or remove the application of federal law.
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