The U.S. Supreme Court has agreed to hear a case on the constitutionality of the Indian Child Welfare Act, a bedrock law passed in the 1970s to combat cultural genocide committed against Indigenous families.
The justices had a menu of four options to choose from in their review of the Brackeen v. Haaland case — with the federal government and several Native American tribes seeking a more limited review. Today they decided to consider the full slate of issues.
That decision disturbed some proponents of the federal law who spoke to The Imprint shortly thereafter.
“Everything is now on the table, every conceivable attack,” said Matthew Fletcher, director of the Indigenous Law & Policy Center at Michigan State University.
The Indian Child Welfare Act, or ICWA, became law in 1978 following research by attorney Bertram Hirsch, who was working for the Association on American Indian Affairs. Hirsch revealed that between 25% and 35% of American Indian children had been placed in adoptive homes, foster homes or institutions. The vast majority were being raised by white families.
Hirsch’s research landed in the waning days of Indian boarding schools in America, institutions weaponized as forced assimilation methods that wrenched thousands of Indigenous children from home. Interior Secretary Deb Haaland, a former U.S. representative, is currently conducting an investigation into the presence of unmarked graves at these schools.
Canada has begun to reckon with its own dark history of boarding schools, and the high rate of removal of Indigenous children into its national foster care system. In January, the Canadian government announced a tentative $31.5 billion settlement to provide reparations to Indigenous children placed in foster care, and invest in reforms.
ICWA in the U.S. was meant to establish extra safeguarding against the over-involvement of state child protection systems in the lives of Native American tribes and families. The federal law requires that “active efforts” are made to prevent the removal of a child and to reunify them if a separation does occur. That stands in contrast with federal child welfare policy for non-ICWA cases, in which only “reasonable efforts” must be undertaken.
Further, if an Indigenous child is removed from their parents following allegations of neglect or abuse, officials must give first preference to tribes, and prioritize a placement with the Indigenous child’s relatives or another Native family.
ICWA has broad, bipartisan support among tribes, states and members of Congress. Tribes and tribal organizations, child welfare experts and dozens of state attorneys general from across the political spectrum have filed court briefs urging that the law protecting Native American families, following decades of precedent, be upheld.
The Brackeen case began in the U.S. District Court for the Northern District of Texas, where Judge Reed O’Connor ruled in October of 2018 that ICWA was unconstitutional on two grounds. O’Connor declared the law to be race-based, despite years of legal history in which courts had established it to be tied to the sovereign rights of Native American tribes. A race-based law is subject to strict scrutiny, which requires the demonstration of an ongoing and compelling government interest.
He also ruled that many of the law’s provisions run afoul of the anti-commandeering doctrine, which prevents the federal government from forcing states to enforce federal law.
Then in April of 2021, the Fifth Circuit Court of Appeals rejected O’Connor’s conclusion that ICWA is race-based. But the justices produced a mixed, 325-page decision that left several provisions of the law in flux. They ruled that two key elements of ICWA were unconstitutional: the active efforts provision, and a requirement that a “qualified expert witness” be presented to the court by any child welfare agency seeking to place an Indian child into foster care or terminate the rights of an Indian child’s parent.
The appeals court deadlocked on the ICWA provision granting relatives and tribal members preferential treatment for foster care placements and adoptions. Parties on both sides of the case asked the high court to grant certiorari and take the case on, which requires the support of four of the nine justices.
In a statement released today, Cherokee Nation Principal Chief Chuck Hoskin, Jr., Morongo Band of Mission Indians Chairman Charles Martin, Oneida Nation Chairman Tehassi Hill and Quinault Indian Nation President Guy Capoeman said they are pleased the Supreme Court will reexamine aspects of the Fifth Circuit decision and “look forward to once again seeing ICWA fully upheld, as courts have repeatedly done for over four decades.”
The tribal leaders went on to state: “We know the importance of keeping our children connected with their families, communities, and heritage. ICWA has proven itself as the gold standard of child welfare law, which is why both Republican and Democratic administrations, tribes and tribal organizations, and child welfare experts continue to defend it.” They added that they “will never accept a return to a time when our children were forcibly removed from our communities and look forward to fighting for ICWA before the Court.”
To that end, they said, “We are confident that the Court will come down on the side of children, families and centuries of legal and constitutional precedent.”
The court had four petitions to choose from: one from Texas; one from adoptive families involved in the case, including the Brackeens, and two similar petitions from Secretary of the Interior Deb Haaland and a group of Native American tribes. The court will now consider everything from whether ICWA is a race-based law, to the ability of Congress to impose on state child welfare policies.
Had the court decided only to take on the petition from Haaland and the tribes, those reviewing the case said, only the specific provisions of ICWA deemed unconstitutional by the lower court would have been considered — a far narrower set of issues.
“Fundamental legal issues would have remained off the table, such as Congress’s Indian affairs powers, the nondelegation doctrine, and the broader equal protection questions,” said Fletcher of Michigan State University.
The court consolidated the four cases, and set a total of one hour for oral arguments.
This is the second time the Supreme Court has looked at ICWA in the past 10 years. A 2013 case, Adoptive Couple v. Baby Girl, involved a Native American father fighting the adoption of his daughter by a non-Indian couple in South Carolina.
The court did not strike down ICWA or any provision of the federal law in that case, but a 5-4 majority did make clear that its protections were limited.
“The Indian Child Welfare Act (ICWA) was enacted to help preserve the cultural identity and heritage of Indian tribes, but under the State Supreme Court’s reading, the Act would put certain vulnerable children at a great disadvantage solely because an ancestor — even a remote one — was an Indian,” Justice Samuel Alito wrote for the majority.
The high court’s composition has changed greatly since then. Justices Antonin Scalia and Ruth Bader Ginsburg have passed away, and Anthony Kennedy has retired. Justice Stephen Breyer, who voted with the majority in the 2013 case, will likely retire before oral arguments in Brackeen.
Nancy Marie Spears contributed to this report.