The U.S. Supreme Court announced Feb. 28 that it would hear challenges to ICWA – the Indian Child Welfare Act that governs the adoptions of Native American children.

The law has been in effect since 1978 and gives preference to adoptions that keep Native children in their own tribal communities. It was a response to the history of abusive child welfare practices that resulted in the displacement of scores of Native American children who were often forcefully taken from their homes and placed in institutions or with families with no tribal connection.

Much of Indian Country considers the latest challenges to ICWA as a test of tribal sovereignty. Supporters say that if the rationale of opponents survives and the law is stricken down, it could also threaten laws that protect tribal casinos and water and land rights.

Three states — Texas, Louisiana and Indiana — and seven individuals sued the federal government to challenge the law. Their arguments include that ICWA intrudes on states’ rights and that it is race-based and thus violates the Constitution.

A handful of tribes intervened in the case to defend the law and said the states’ race-discrimination argument is inflammatory. They said ICWA is “tied to membership in Indian tribes – which is about politics, not race.”

The Supreme Court has granted review in four appeals and is scheduled to hear arguments during its next term, which begins in October.

The Tribune asked Sarah Kastelic (Alutiiq), the executive director of the National Indian Child Welfare Association (NICWA), to weigh-in on the court’s decision to hear the case.

Were you surprised by the court’s decision?

No, we had anticipated that the court would grant cert. All parties – pro-ICWA and anti-ICWA – filed for review, asking the court to hear the case. Additionally, the Fifth Circuit Court of Appeals had previously ruled that a few provisions of ICWA violated the 10th Amendment of the U.S. Constitution, which prevents the federal government from commandeering, or requiring, states to use their resources for federal purposes. When a lower court finds part of a federal law unconstitutional, that often attracts the Supreme Court’s interest. (Editor’s note: Granting cert, or certiorari, means if four of nine justices agree to review the case, then the court will hear it).

Did the make-up of the court (six conservatives and three liberals) affect its decision?

No, we don’t know for sure why the court accepted the case. In general, the Supreme Court doesn’t hear many child welfare matters – the last time they heard an ICWA case was Adoptive Couple v. Baby Girl in 2013. We don’t know which justices wanted to hear the case and why.

Do you have a sense of which way the court might lean?

We don’t; and by the time the court hears this case in the fall term there will be a new justice on the bench. There are multiple questions before them, and we don’t even know which questions are of most interest. When we hear the questions that the court poses during oral arguments, that will give us a clue about where their interest lies.

Who will argue on behalf of ICWA?

Representatives from the U.S. Department of Justice and the four intervener tribal governments – the Cherokee Nation, Morongo Band of Mission Indians, Oneida Nation of Wisconsin and Quinault Indian Nation – will argue the case before the court.  

Are you worried that ICWA might be overturned?

I think tribes are rightly concerned. There’s definitely risk, and there’s a lot at stake. We have a lot of educating to do through our pro-ICWA amicus briefs to make sure the court has all of the information it needs to make a good decision. There’s a real art and science to the amicus brief strategy and it will be important for tribes to consider signing on to the pro-ICWA tribal government brief when it’s time, in mid-May. Once again, we want to show the court that tribal governments, in addition to state governments, members of Congress, mainstream child welfare organizations and others, overwhelmingly support ICWA. (Editor’s note: Amicus briefs allow entities that have a stake in litigation to provide information to the court on particular issues they believe are important to the case).

What’s the goal of those who oppose ICWA?

Despite what ICWA opponents say, they do not have the best interests of Indian children at heart. Opponents of ICWA do not know what’s best for Native kids. Their motives are to overturn tribal rights for profit, to access tribal land and natural resources and ultimately to dismantle tribal sovereignty. This starts by removing ICWA’s protections for our youngest generations. ICWA is facing the ultimate challenge. We must protect ICWA at all costs to prevent history from repeating itself and to ensure the rights of Native children to their families, communities and culture. 

Can ICWA supporters do anything in the meantime?

Besides signing on to the tribal government amicus brief later this spring, tribes and Indian Country have the opportunity to educate the public about what ICWA is and why it’s important. They can also help educate people about this case, the opposition, and the political agenda that is being advanced. There are great resources on NICWA’s website and on the Native American Rights Fund’s (NARF) website. They can listen to Rebecca Nagel’s (Cherokee Nation) podcast about ICWA and this case, called ‘This Land.’ I’d also like to encourage Native individuals and families to consider being a foster parent. You can make a huge difference in the life of child. You can help them stay connected to their identity, family, community and culture – things that research shows make a big difference to children’s health and wellbeing.

More is at nicwa.org.