Native American Tribes Celebrate SCOTUS Decision Upholding ICWA

By Heidi McNeil Staudenmaier

There was a collective sigh of relief across Indian Country when the United States Supreme Court issued its decision, Haaland et al. v. Brackeen et al, on June 15 upholding the Indian Child Welfare Act (“ICWA”). Federal Indian Law scholars lauded the ruling as “without question, a massive win” and a “stunning victory” upholding both the foundations of Federal Indian Law and the ICWA.

At the core of the case was determining whether Congress acted within its plenary authority to regulate Native American affairs when it enacted the ICWA nearly 50 years ago. By way of background, Congress passed ICWA in 1978 with the intent of halting both federal and state practices of removing Native American children from their tribal communities and placing these children away from their families in foster or adoptive homes outside their tribes. The law sought to assist tribes in preserving their heritage — of which protecting the precious resource of children was paramount.

ICWA contains several key components: (1) ceding jurisdiction to Tribal governments in custody proceedings involving their children; (2) permitting Native American authorities to have a greater voice in placement decisions concerning adoption or foster care; (3) directing state officials to first place Native American children with a member of their extended family whenever possible, and if not possible, then preference to be accorded to other members of the child’s Tribe, and finally to other Native American families.

Justice Amy Coney Barrett authored the 7-2 decision with Justices Alito and Thomas dissenting. The majority opinion held that ICWA did not exceed Congress’ authority to effectuate, nor did ICWA violate “commandeering” concerns by requiring states to follow federal law. The Justices, however, declined to issue a substantive ruling on whether ICWA amounts to racial discrimination. The plaintiff challengers contended that ICWA gives preference to Native American families in the adoption process. Nor did the majority rule on the merits regarding equal protection and the ICWA — a point made by Justice Kavanaugh in his concurrence. The decision found that the individual challengers to the ICWA lacked standing for their equal protection claim because the lawsuit failed to involve state authorities who actually implement the statutory requirements.

The decision recognized that the ICWA statutory structure was a legitimate exercise of Congressional authority under the Constitution. Justice Barrett observed that the law is “muscular,” albeit not unlimited. She noted that Congress is entitled to regulate issues of family law. She further concluded that the ICWA does not require state action in violation of the Tenth Amendment, since it applies to both public and private child-welfare proceedings. As such, the challengers were unsuccessful in supporting their commandeering claim — which Justice Barrett described as a “heavy lift” because the provision at issue “does not command state agencies to do anything.”

Justice Gorsuch, who is viewed as a staunch advocate for Native American tribes, wrote a compelling concurrence where he discussed the lengthy history of the removal of Native American children from the roots of their tribal communities and that ICWA’s purpose was to end such practices. Justice Gorsuch opined:

“In adopting the Indian Child Welfare Act, Congress exercised that 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. All of that is in keeping with the Constitution’s original design.”

Justices Alito and Thomas filed separate dissenting opinions, and primarily analyzed the limits of Congressional authority and fairly glossed over the equal protection issues. Justice Kavanaugh, in his concurring opinion, described the racial discrimination claim as “serious.” He opined that ICWA could preclude a child from being placed in the best possible home due to racial considerations and also deny potential non-Native parents from being able to adopt or foster a Native American child for the same reasons.

The underlying lower court decision came out of the Texas Federal Court in 2018, whereby U.S. District Judge Reed O’Connor agreed with the State of Texas and a coalition of individuals challenging the constitutionality of the ICWA and determined that the law discriminated against non-Native Americans seeking custody of Native American children. The Fifth Circuit Court of Appeals in 2021 found certain parts of the ICWA to be constitutional but struck down other parts on the grounds that the law illegally forced state agencies to follow federal law in child custody proceedings. This was the decision appealed by both sides to the Supreme Court.

The original lawsuit was brought in 2017, when a Fort Worth, Texas couple, Chad and Jennifer Brackeen, sought to adopt two siblings whose mother is a member of the Navajo Nation.

Many observers in Indian Country were concerned the conservative Court would strike down ICWA, which in turn could negatively impact Tribal sovereignty. The Cherokee Nation, Morongo Band of Mission Indians, Oneida Nation, and Quinault Indian Nation played a major role in defending ICWA in the high Court. In a public statement, the Tribal leaders noted that the ruling is a “broad affirmation of the rule of law, and of the basic constitutional principles surrounding relationships between Congress and tribal nations…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.”