The U.S. Supreme Court could decide by the end of the week whether to take up a case involving the rights of Indigenous tribes and families in child welfare cases — an area of law that was thrown into confusion when a federal appeals court invalidated several provisions of the Indian Child Welfare Act, or ICWA.
At stake is the future of ICWA, a 43-year-old law that was passed at a time when an estimated one-third of Native American children were removed from their homes. The dispute in Brackeen v. Haaland is over whether ICWA improperly tramples states’ right to make individualized determinations of a child’s best interests in child welfare cases or whether all Indian child welfare cases fall under ICWA.
The deadline for filing briefs on the case ended this week, so the justices could discuss the case in their first private conference of 2022 on Friday and vote, based on briefs filed by the interested parties and the justices’ discussion, whether to hear oral arguments later this term. At least four of the nine justices must vote yes in order for the case to continue. Under the current court, decisions are typically announced within days.
If the Brackeen case is not discussed Friday, there are two other case conference days scheduled for the high court in January.
The court receives thousands of petitions each year and only hears oral arguments in 70 or 80 cases. Because the New Orleans-based 5th U.S. Circuit Court of Appeals invalidated significant parts of ICWA in a divided ruling in 2021, the law in that circuit is now in conflict with how the law is interpreted in the rest of the country. All parties in this case — the federal government, several Indian tribes and the state of Texas — strongly urge the Supreme Court to clarify the conflict, saying it involves weighty constitutional issues.