Last week, the Supreme Court voted 7-2 to uphold the Indian Child Welfare Act (ICWA), finding that the act neither discriminates on the basis of race nor does it impose an undue burden on states.
In 1978, Congress passed a law granting Indigenous peoples priority in adoption cases involving Native American children in order to address the systematic practice of removing Native American children from their homes and placing them with non-Native — typically white — families.
This recent ruling upholds the rights of Indigenous peoples to receive priority in adoption cases involving Native children.
“Congress exercised (its) lawful authority to secure the right of Indian parents to raise their families as they please, the right of Indian children to grow in their culture, and the right of Indian communities to resist fading into the twilight of history,” Justice Neil Gorsuch wrote in a concurring opinion affirming the court’s decision.
“Today’s decision is a major victory for Native tribes, the children, and the future of our culture and heritage,” Cherokee Nation Principal Chief Chuck Hoskin, Jr. said in a statement following the news. “It is also a broad affirmation of the rule of law and of the basic constitutional principles surrounding relationships between Congress and tribal nations.”More: Read additional statements from Indian Country and government leaders about the ruling here from URL Media partner Native News Online.
The case stems from a 2017 lawsuit in which a federal district court in Texas ruled that ICWA violated the Constitution. The ruling was widely criticized and was quickly overturned by the Fifth Circuit, with the appellate court affirming ICWA’s constitutionality.
The suit’s plaintiffs were three non-Native couples and three states (led by Texas) who had sought to adopt or foster three Native children, with one couple being supported by the mother of a child that was adopted. Of the plaintiffs were non-native Texas couple Chad and Jennifer Brackeen argued that the law was unconstitutional for a few reasons, namely racial discrimination.In November 2019, during a review of the Fifth Circuit court’s decision, Congress decided that parts of ICWA were constitutional of ICWA, and some parts of the law weren’t. Two years later, lawyers on both sides of the litigation asked the Supreme Court to review the Fifth Circuit’s en banc decision. The petition was granted in February of 2022 and oral arguments in Haaland V. Brackeen were heard this past November.
More: The Indian Child Welfare Act: What it is and what’s at stake (URL Media)
In spite of this, support for ICWA from Indigenous communities was widespread.
Nearly 500 tribes, 60 Native organizations, 23 states and the District of Columbia, 87 members of Congress, and more than two dozen child welfare and adoption organizations and others signed onto 21 briefs filed in support of ICWA.
More: Earlier this month, Native News Online spoke with a Michigan State student who grew up in the child welfare system about her relationship with ICWA. Read more here.
“While today’s victory is to be celebrated, this will not be the last time a case against Tribal rights will be brought to the courts,” Judith LeBlanc, board chair of NDN Collective, said in a statement. “Haaland V. Brackeen is part of a larger campaign to undermine Tribal sovereignty and gut the legal infrastructure that codifies Tribal sovereignty.”
“The Brackeen v. Haaland ruling was a huge and significant victory for those 500 plus tribes, 60 Native American organizations, and our allies that defended our right to raise our children,” Levi Rickert, Native News Online founder and publisher, wrote of the court’s decision. “More than that, it was a victory for our children, our culture and our future.”
The court did not rule on the merits of two additional claims — an equal protection challenge to ICWA’s placement preferences and a challenge to ICWA’s provision allowing tribes to alter the placement preferences — stating that the petitioners lacked standing.
