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Supreme Court's Indian Child Welfare Act ruling preserves tribal sovereignty

Students stand outside for a group photo in front of the Cherokee Boarding School. The Indian Child Welfare Act was created to combat decades of policies aimed at separating Native American children from their culture, often through enrolling them in boarding schools. Hunter Library/WCU photo Students stand outside for a group photo in front of the Cherokee Boarding School. The Indian Child Welfare Act was created to combat decades of policies aimed at separating Native American children from their culture, often through enrolling them in boarding schools. Hunter Library/WCU photo

Native American tribes across the country are celebrating after a June 15 ruling from the U.S. Supreme Court struck down a challenge to the 45-year-old Indian Child Welfare Act. The case had the potential to upend the foundations of tribal sovereignty.

“The Indian Child Welfare Act was a necessary response to dark periods in history where Indian children were intentionally taken from their families for the express purpose of stripping their Native identities,” said Eastern Band of Cherokee Indians Principal Chief Richard Sneed. “We are heartened that the Supreme Court has affirmed the legal and constitutional validity of this vital legal framework to prevent those wrongs from happening again.”

ICWA was enacted in 1978 after Congress found that an “alarmingly high percentage of Indian families [were] broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies.” The law governs adoptions involving Native American children, giving first preference to adoptive parents who are tribal members. It signaled the end to the federal government’s century-long effort to obliterate tribes by preventing them from passing their cultures and traditions to the next generation. Starting in the late 1800s, children were forcibly removed from their homes in large numbers for enrollment at far-away boarding schools or placement in non-Indian adoptive and foster homes.

In Haaland v. Brackeen, the plaintiffs asked the Supreme Court to strike the law down as unconstitutional, a decision that would have shaken the very foundations on which tribal sovereignty rests. But in a 7-2 decision, the court ruled against the plaintiffs and upheld ICWA.

“The issues are complicated — so for the details, read on,” reads the majority opinion authored by Justice Amy Coney Barrett. “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.”

Justices Clarence Thomas and Samuel Alito offered the two dissenting opinions. Justices Neil Gorsuch and Brett Kavanaugh each filed concurring opinions of their own in addition to joining Barrett’s opinion.

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"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,” said U.S. Secretary of the Interior Deb Haaland, whose job title made her a party to the lawsuit and who is an enrolled member of the Pueblo of Laguna tribe.

Congress passed ICWA to put an end to longstanding policies that forcibly removed Indian children from their families in a “targeted attack on the existence of tribes” that “inflicted trauma on children, families and communities that people continue to feel today,” Haaland said.

“The act ensured that the United States’ new policy would be to meet its legal and moral obligation to protect Indian children and families, and safeguard the future of Indian tribes," she wrote.

Not everyone is celebrating, however.

“The Supreme Court’s long and complicated ruling in this morning’s Brackeen case comes as a let-down to anyone seeking a brighter future for Native American children,” reads a June 15 statement by Tommy Sandefur, vice president for legal affairs for the Goldwater Institute, which calls itself “the nation’s preeminent liberty organization.” Goldwater had filed a brief with the Supreme Court in support of the Brackeens.  

Sandefur decried ICWA protections as race-based rules that fail to adequately protect Native American kids from abuse, and “effectively bar” non-Native adults from offering them loving, adoptive homes.

The case before the court came from three separate child custody cases but gets its name from Texas residents Chad and Jennifer Brackeen, who began fostering a 10-month-old boy whose parents were members of the Navajo and Cherokee nations. The boy’s parents wanted the Brackeens to adopt him, but the tribal nations did not. A legal battle ensued. The Brackeens eventually finalized the adoption after the Navajo Nation, which had been championing an alternative placement for the boy, dropped out of the lawsuit. The case that ultimately ended up in the Supreme Court was filed after the Brackeens sought to adopt the boy’s sister.

In 2018, U.S. District Court Judge Reed O’Conner ruled in favor of the Brackeens, sending shock waves through Indian Country when he found that ICWA unconstitutionally differentiated treatment based on race. Tribal affiliation has traditionally been understood as a political status, not a racial one — if O’Conner’s interpretation had stood, it would have cracked the entire foundation on which tribal sovereignty rests.

“If it’s deemed unconstitutional and that’s allowed to stand, it opens the door to every other aspect of the relationship between tribal governments and the federal government,” Sneed said following the 2018 decision. “At that point you’re saying, ‘Well, tribes aren’t really sovereign because there can’t be a separate classification of people known as Indian tribes within this country because that’s unconstitutional, because it’s race-based.’ Everything that we do now where we act as a sovereign could be called into question.”

Last week’s majority opinion did not explicitly strike down O’Conner’s original interpretation, but it didn’t uphold it either. The Fifth Circuit Court of Appeals, which heard the case after O’Conner, was evenly divided as to whether ICWA’s prioritization of Native American foster families over non-Native homes was tantamount to unconstitutional racial discrimination, thus affirming the District Court ruling on that point. In the majority opinion, however, Barrett wrote that the plaintiffs did not have standing to bring that challenge.

This outcome offered a “silver lining in this cloud of legal abstraction,” Sandefur wrote.

“The Court left open the possibility of a future case in which ICWA’s constitutionality might be directly resolved,” he wrote. “As the justices noted, most ICWA cases are decided by state, rather than federal courts, and litigants in state ICWA cases remain free to raise the constitutional issues involved here.”

Rebecca Nagle, a leading Native American journalist who has been following the Brackeen case closely — even producing an entire podcast season exploring it — said on a Twitter thread that ICWA opponents may well try to raise the equal protection issue again, but that finding a custody case whose parties have standing and that goes on long enough to warrant litigation will be challenging.

“I do think the standing ruling is a significant set back for anti-ICWA advocates,” she wrote. “It’s been the thing blocking them all these years. In this case, they tried to use legal trickery to get around it. And the Supreme Court shut that down.”

The plaintiffs’ argument was multifaceted —  it wasn’t just about equal protection. They challenged the law on multiple points, and the court ruled against them.

“Today’s decision is a major victory for Native tribes, children and the future of our culture and heritage,” said Cherokee Nation Principal Chief Chuck Hoskin. “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.”

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