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Supreme Court upholds ICWA

Legal challenges to ICWA have increased in recent years. (iStock)

There was a collective sigh of relief across Indian Country on June 15 when the Supreme Court upheld the Indian Child Welfare Act after a series of legal challenges. Many had braced for the worst – either that key ICWA provisions would be struck down or that the 1978 law would be completely overturned.

ICWA sets up a hierarchy of placement for Native American children in foster care and adoption cases. It first prefers the child’s extended family, then members of the child’s tribe, then another Native American family – even if from a different tribe. The law came about in response to hundreds of thousands of Native American children that had been removed from their homes by adoption agencies and placed with white families or in group settings – often being stripped of their identities and culture.

Justice Amy Coney Barrett, who wrote for the majority in a 7-2 decision, said Congress’s power to legislate with respect to Native Americans is “well established and broad,” even when it impacts family law, which is an area that is primarily a state responsibility.

Justice Neil M. Gorsuch, considered the court’s most consistent supporter of Native American rights, used a separate concurring opinion to emphasize the law’s value.

“The dissolution of the Indian family has had devastating effects on children and parents alike. It has also presented an existential threat to the continued vitality of Tribes – something many federal and state officials over the years saw as a feature, not as a flaw,” wrote Gorsuch, who was joined in part by Justices Sonia Sotomayor and Ketanji Brown Jackson.

“I would like to applaud the justices of the Supreme Court for recognizing the unique relationship that exists between the United States government and the Native nations that have always called this land home,” Stan Wolfe (Eastern Band of Cherokee Indians), the Seminole Tribe’s Tribal Court director, said in a statement to the Tribune. “Strong cultural and family connections is what has kept our people alive and well throughout all the attempts by the U.S. government to assimilate us into their society.”

Wolfe said, however, that Indian Country should remain cautious, as more challenges to the law would undoubtedly come.

“Until that time, the Seminole Tribal Court will continue to strengthen our already strong relationship with the Florida dependency courts, helping to educate the system on ICWA and the Seminole Tribe of Florida.”

For several years, Tribal Court has maintained a relationship with family court judge Jose Izquierdo, who serves in the 17th Judicial Circuit Court of Florida, to conduct dependency hearings at tribal headquarters.

‘Massive victory’

Three non-Indian couples and three states, led by Texas, in an aggregated case that became known as Haaland v. Brackeen, had challenged ICWA. The plaintiffs contended the law was unconstitutional based on race. The case came to the Supreme Court from the U.S. Court of Appeals for the 5th Circuit, where part of the law was upheld and part was held unconstitutional. The complex ruling was 325 pages long with opinions from six judges.

Tribes and their supporters argued that the law is based on political distinctions, not racial ones.

“Today’s decision is a massive victory for Native children, Native families, and the future of Native peoples,” the National Indian Child Welfare Association (NICWA), said in a June 15 statement. “The court’s decision affirmed that ICWA is constitutional, puts the best interests of Native kids first, and is grounded in tribal sovereignty. This ruling respects the work that tribal nations have done for millennia to ensure Native kids stay connected to their families, communities and cultures whenever possible.”

Upholding ICWA’s provisions has been a cornerstone of NICWA’s advocacy work for many years.

“Not only will this ruling allow Indian Country to continue to advocate for the best interests of Native children, but it also reaffirms what we have said and known all along: tribal nations are sovereign nations,” the NICWA statement said. “For too long, ICWA’s opponents have used cases like Haaland v. Brackeen to try to undermine tribal sovereignty. The justices have sent a clear message that these biased, ahistorical attacks have no legal foundation and will not be tolerated. We hope this decision will lay to rest the political attacks, but let this case show that Indian Country and its many bipartisan allies are united in defense of Native children and of tribal sovereignty.”

Justices Clarence Thomas and Samuel A. Alito Jr. dissented, with Alito writing that the majority “decides one question after another in a way that disserves the rights and interests of these children and their parents, as well as our Constitution’s division of federal and state authority.” Thomas and Alito wrote that ICWA is unconstitutional.

The ruling is available in its entirety here.

Damon Scott
Damon is a multimedia journalist for the Seminole Tribune. He has previously been an editor and reporter for digital and print media in Florida and his home state of New Mexico. Send him an email at