7-2 ruling hailed by Indigenous leaders as a victory for tribal sovereignty.
This story has been updated to include additional information. To read The Imprint’s previous coverage of the Brackeen v. Haaland case, click here.
The federal law designed to maintain the bonds between Native children and their families and tribes has been upheld by the U.S. Supreme Court, a ruling that will be celebrated across Indian Country and among child welfare advocates and officials nationwide.
The opinion handed down today followed a decisive 7-2 vote. It struck down challenges to the 1978 Indian Child Welfare Act brought by multiple states and three foster families, who argued the federal statute was unconstitutional and denied non-Indigenous parents adoptive rights.
In the majority opinion, Justice Amy Coney Barrett acknowledged the complexity of the case challenging the law known as ICWA, but concluded: “The bottom line is that we reject all of petitioners’ challenges to the statute, some on the merits and others for lack of standing.” Only Justices Clarence Thomas and Samuel A. Alito Jr., dissented.
Praise for the ruling was swift, from the White House and top Biden administration officials to the lawyer for Robyn Bradshaw, a grandmother of the White Earth Band of the Minnesota Chippewa Tribe involved with the Brackeen v. Haaland case. Bradshaw’s attorney Steffen Johnson told The Imprint that the Supreme Court decision shows his client’s “hard-fought victory” to adopt her granddaughter “will not be for naught.”
“Our nation’s painful history looms large over today’s decision,” President Joe Biden said. “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.”
Biden called these actions “unspeakable cruelty that affected generations of Native children and threatened the very survival of Tribal Nations.” The president added, “the Indian Child Welfare Act was our Nation’s promise: never again.”
Alaska Republican Sen. Lisa Murkowski, vice chair of the Senate Committee on Indian Affairs, called the Brackeen ruling “a victory for Native people.”
The Protect ICWA Campaign, a coalition of Native American organizations across the country, said, “We are overcome with joy that the Supreme Court has upheld the Indian Child Welfare Act (ICWA), which is widely regarded as the gold standard of child welfare.”
Defenders of ICWA before the Supreme Court included 497 tribes, 24 states and Washington, D.C. They maintained that requiring child welfare agencies to take extra measures before Native children are removed from their tribes and kin is fundamental to the unique treaty relationship between the U.S. government and tribal nations.
Tribes who defended ICWA — including Cherokee Nation, Morongo Band of Mission Indians, Quinault Indian Nation and Oneida Nation — moved quickly to the future.
“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,” the tribes announced this morning.
Three constitutional questions were before the U.S. Supreme Court in the Brackeen v. Haaland case, issues that centered on core aspects of congressional power and the relationship between tribes and the U.S. government. The case examined whether non-Native parents seeking to adopt and Native children in need of homes were both being subjected to racial discrimination, whether the U.S. government can “commandeer” states to enforce the federal law and whether Congress even had the right to pass the law in the first place.
One of the plaintiffs’ attorneys, Mark Fiddler, told The Imprint that “the inequalities created by ICWA were not examined or considered by the Court,” adding, “rest assured, more challenges to ICWA under equal protection grounds are guaranteed.” In a tweet earlier in the day, he declared, “ICWA lives to die another day!”
Lana Marcussen, counsel for Citizens Equal Rights Foundation and the Citizens Equal Rights Alliance, said, “Today’s decision allows persons who are affected by potentially overreaching federal laws like ICWA to now challenge their constitutionality directly in the forum that is applying the law to them.”
The Goldwater Institute — an Arizona-based conservative think tank that has argued against ICWA in more than a dozen cases and filed supporting briefs in this case — stated the high court’s rejection of the legal challenges was “based largely on legal technicalities,” and that, “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.”
“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.”
— Cherokee, Morongo, Oneida and Quinault Tribes
Plaintiffs in the case include Texas, Indiana and Louisiana — along with three white couples who sought to adopt Native children. They asserted that the 1978 law poses “heightened legal barriers” to those adoptions because it gives the children’s tribes and kin placement priority.
Jennifer and Chad Brackeen, a white evangelical couple from Fort Worth, Texas, were successful in their adoption of the Navajo and Cherokee boy they’d been fostering, called A.L.M. in court documents.
Although a 2018 court settlement allowed them to adopt the boy, the Brackeens continued to pursue the case to the nation’s highest court, citing their interest in being foster or adoptive parents to more children. They also pursued adoption of the boy’s younger half-sister, which the Navajo Nation contested. A Texas judge ordered shared custody, but both sides appealed, and it is her fate that landed in the Supreme Court’s hands.
Their Supreme Court case was litigated pro bono by Gibson Dunn, a high-powered corporate law firm that has also fought tribes over land, water and gaming rights. For these trial attorneys, who do not specialize in family law matters, the overturning of ICWA would have set an important precedent, stripping tribes of their legal rights as sovereign nations and threatening their oil and mineral rights and casino operations.
In a court brief, the Brackeens’ attorneys argued that ICWA “deprives children who are U.S. citizens residing under State jurisdiction — including some who are not (and may never become) tribal members — of the protections that the best-interests-of-the-child standard provides, simply because they have a certain Indian blood quantum.”
Nick and Heather Libretti, a Nevada couple, joined the lawsuit after their adoption of an infant surrendered by her mother, a non-Native. The adoption was challenged by the child’s birth father, who wasn’t an enrolled member of the tribe at the time of her birth. The father, named E.R.G. in court documents, is descended from a registered member of the Ysleta del Sur Pueblo (Tiwa or Tigua Tribe), in El Paso, Texas. The tribe settled and the Librettis were successful in adopting the child, but said ICWA violated their right to equal protection. Altagracia Socorro Hernandez, the biological mother who surrendered the baby, was also a plaintiff.
The Ysleta del Sur Pueblo conceded to Baby O.’s adoption only after the Librettis joined the Brackeens’ constitutional suit against ICWA, and on Dec. 19, 2018, Nevada state court declared the Librettis the lawful parents of the child. Hernandez wrote in court documents that the tribe went against the wishes of both biological parents to remove Baby O. from the Librettis.
“The Librettis have loved Baby O. as their own daughter and have lovingly welcomed her into their family,” Hernandez wrote in her letter to the court. “I believe being adopted by the Librettis is in Baby O.’s best interests.”
The third couple, Jason and Danielle Clifford of Minnesota, joined the lawsuit after their attempt to adopt a 5-year-old was halted by the White Earth Ojibwe Tribe, of which the girl’s grandmother was an enrolled member. The grandmother adopted the girl in spring of 2020 and wrote an op-ed explaining how ICWA allowed their reunification.
Other ICWA opponents included the Christian Alliance for Indian Child Welfare, the Academy of Adoption and Assisted Reproduction Attorneys, and the National Council For Adoption. In its amicus brief, the Christian Alliance denounced ICWA as “discriminatory and destructive.”
“The Indian Child Welfare Act was our Nation’s promise: never again.”
— President Joe Biden
The justices’ reasoning
To onlookers’ surprise, in the end, the Supreme Court’s ruling was not even close. The seven justices left the Indian Child Welfare Act standing in its entirety. The court rejected most of the arguments made by the state of Texas and the group of adoptive parents, and in some instances found that they lacked standing on challenges they made to the law.
Specifically, they rejected arguments that ICWA exceeds Congress’ authority when it comes to regulating Indian affairs and that the law forces states to carry out federal law. The justices ultimately disagreed that ICWA’s placement preferences for foster care and adoption, which focus on keeping Indian children with relatives or fellow tribal members, violate the Constitution’s equal protection clause.
The majority acknowledged the uncertain boundary regarding what Congress can regulate when it comes to Indian affairs, but wrote that the provisions of ICWA fall within that boundary.
“We have often sustained Indian legislation without specifying the source of Congress’s power, and we have insisted that Congress’s power has limits without saying what they are,” Barrett wrote. “Yet petitioners’ strategy for dealing with the confusion is not to offer a theory for rationalizing this body of law — that would at least give us something to work with. Instead, they frame their arguments as if the slate were clean. More than two centuries in, it is anything but.”
The majority was equally unpersuaded by claims that ICWA’s provisions violated the so-called anti-commandeering doctrine, a section of the 10th Amendment that forbids states from being compelled to enforce federal law.
The court did not issue an opinion on the arguments that ICWA’s placement preferences violated the rights of the adoptive parents in the case, because the majority found that the parties lacked standing on those grounds.
An opinion from the court on this issue would require a petitioner to have “suffered an injury in fact that is ‘fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief,’” Barrett wrote. “Neither the individual petitioners nor Texas can pass that test.”
All of the children involved in the case have either had their adoptions finalized or are living with family members. And, the court said, “Texas has no equal protection rights of its own.”
Justice Brett Kavanaugh, who voted with the majority, issued a concurring opinion expressing his concern involving equal protection and ICWA.
“Under the Act, a child in foster care or adoption proceedings may in some cases be denied a particular placement because of the child’s race — even if the placement is otherwise determined to be in the child’s best interests,” he wrote. “And a prospective foster or adoptive parent may in some cases be denied the opportunity to foster or adopt a child because of the prospective parent’s race. Those scenarios raise significant questions under bedrock equal protection principles and this Court’s precedents.”
The two dissenting justices, Alito and Thomas, pushed back against the majority’s defense of ICWA as being within the “plenary powers” of Congress, arguing that the authority of Congress to regulate should mostly be limited to the issue of commerce.
“There is simply no reason to think that there is some sort of free-floating, unlimited power over all things related to Indians,” Thomas wrote. “Like so many cases before it, the majority’s opinion lurches from one constitutional hook to another, not quite hanging the idea of a plenary power on any of them, while insisting that the plenary power is not absolute.”
Justice Neil Gorsuch, in his concurring opinion, took that argument on rather pointedly.
“And at the risk of stating the obvious, Indian commerce is hard to maintain if there are no Indian communities left to do commerce with,” he wrote.
The origin of ICWA
The Indian Child Welfare Act was authorized by Congress and signed into law in 1978 to counter centuries of forced assimilation and to repair the harmful impact of an adoption system that sent many Native children into white, Christian homes. When ICWA became law, up to a third of Native American children were placed into foster care or adoptive homes — the vast majority sent to live far from their families and tribal communities.
Today, Indigenous children remain the most disproportionately impacted by the foster care system. Nationally, they are two to three times more likely than non-Native children to be removed from their parents, according to the National Indian Child Welfare Association.
More than a dozen states have enacted their own versions of ICWA, efforts that grew as the federal law came to be viewed under the recent challenge as imperiled. The Imprint’s state ICWA law tracker has the latest information on which states have passed these laws.
But today’s ruling maintains the bedrock federal law designed to deter Indigenous family separation.
“One thing is certain: ICWA is crucial for the safety and well-being of Native children and families and the future of Native peoples and Tribal Nations,” the Protect ICWA Campaign stated. “The positive impact of today’s decision will be felt across generations.”
John Kelly contributed to this story.