The nation’s bedrock law to protect Native American families from being separated by the U.S. government is one step closer to being under review by the highest court in the land.
It had long been considered likely. But late last week, parties on both sides of a significant legal challenge to the Indian Child Welfare Act — including the state of Texas, some non-Native parents, the Office of the U.S. Solicitor General and a handful of Indian tribes — formally asked the U.S. Supreme Court to decide whether the federal law is in line with the Constitution.
In its petition to the court, Texas argues that the Indian Child Welfare Act, which makes it more difficult to remove Native American children from their families in foster care and adoption cases, should be thrown out. The parties contend the law known as ICWA is unconstitutionally race-based, and gives tribes too much power over states.
Moreover, Texas and the adoptive parents argued at trial that the federal law contradicted Texas laws, which require adoption decisions to be made in the best interest of the children. They said the Indian Child Welfare Act hurt children by keeping them in the child welfare system for longer than necessary, given that they had loving would-be adoptive parents fully prepared to take them in.
Defenders of the law, including the tribes, say the 1978 law is not based on race but on the rights of tribes as political groups. The best interest of American Indian children, they argue, is served when they are able to maintain strong connections to their cultural roots, whether that be reuniting with their birth parents or moving in with other tribal families.
The weight of history bears down on the case. ICWA was passed to counteract the genocidal family separation that took place in this country, and the devastation of Native American families whose children were forcibly removed and sent to boarding schools run by white people and missionaries.
Now, parties on both sides are asking the Supreme Court to take the case and settle the constitutionality questions lingering from the lower circuit court’s actions.
Those seeking a Supreme Court date include the state of Texas, three adoptive families who are individual plaintiffs in the case, and the Cherokee Nation, Oneida Nation, Quinault Indian Nation and Morongo Band of Mission Indians. Also seeking review is President Joe Biden’s Secretary of the Interior, Deb Haaland, who became the named lead defendant in the case upon being confirmed to her position.
Haaland, who is an enrolled member of the Laguna Pueblo tribe, this summer launched an investigation into the history of the Indian boarding schools initiative in America, which ripped thousands of Native American children from their homes during the 19th and 20th centuries.
The dark legacy of that era was a driving force behind the passage of the Indian Child Welfare Act in 1978.
“To address the intergenerational impact of Indian boarding schools and to promote spiritual and emotional healing in our communities, we must shed light on the unspoken traumas of the past,” Haaland said in June, in a speech announcing the investigation. “No matter how hard it will be.”
The current state of the law is jumbled as a result of the case in question, Brackeen v. Haaland. As a result of the lawsuit, in 2018, a federal district court in Texas ruled that ICWA is unconstitutional, but a panel of the Fifth U.S. Circuit Court of Appeals, based in New Orleans, disagreed. Then, in a rare en banc convening of the Fifth Circuit, decisions on the fate of the law went in different directions.
A majority of the justices found ICWA to be constitutional overall, affirming that it is not race-based as judged by the lower court, and upholding previous findings that it is a political law with a rational basis. Supreme Court precedents hold that race-based laws require “strict scrutiny” aimed at avoiding unnecessarily broad protections.
The court deadlocked on the provision of the law most relevant to the case, which requires that, in cases involving the fostering or adopting of Indian children, extended family and members of their tribe are considered preferential placements.
Still, in the complex ruling, a majority of the circuit judges struck down a central tenet of the law, which requires child welfare systems and courts ensure that “active efforts” are made to keep Native American children with their families, and to reunify them if they must be separated for a time due to abuse or neglect allegations.
Federal child welfare law requires only “reasonable efforts” be made for other children, a lesser standard.
In an interview with The Imprint Weekly Podcast after the Fifth Circuit’s decision in April, Chrissi Ross Nimmo, the deputy attorney general of Cherokee Nation, said the active efforts requirements under ICWA “probably are the most important and kind of the most practical application” of the Indian Child Welfare Act.
The mixed-bag, 325-page decision has created a confusing muddle. For states in the Fifth Circuit, the active efforts provisions have been struck. In the Texas district covered under the prior ruling, the law’s language on foster and adoption preferences is voided as well.
Two states that had previously joined Texas in the lawsuit, Indiana and Louisiana, did not join the state this time in seeking Supreme Court review.
The Supreme Court does not have to take the case, but it often does so when legal views of a federal issue are closely divided and litigants on both sides seek clarity. If four of the nine judges agree, Brackeen v. Haaland will be granted certiorari and scheduled for arguments. The Supreme Court has not heard an Indian Child Welfare Act case since 2013, when it ruled for white parents over a non-custodial parent in Adoptive Couple v. Baby Girl.
The parties will file additional briefs over the next month, before the high court decides whether to hear the case. Links to four separate petitions to the court can be found here.
Imprint Senior Editor John Kelly contributed to this article.