Native nations, people across Turtle Island celebrate Supreme Court ruling upholding ICWA
A sense of relief washed over Indian Country when the U.S. Supreme Court upheld the Indian Child Welfare Act, or ICWA, in its entirety June 15.
Native nations and peoples in the Pacific Northwest and across Turtle Island awaited the decision for nearly six months after last November’s oral arguments in Brackeen v. Haaland. A ruling against ICWA, which prioritizes placement in Indian homes for Indian youth in the adoption and foster care systems, would have damaged tribal sovereignty and Native nations’ ability to protect their youth.
Tribal leaders and advocates for Indigenous peoples across Turtle Island cheered the 7-2 ruling upholding all parts of ICWA, calling it a major victory not only for Native children but also for tribal sovereignty.
ICWA
ICWA provides preference to Indian adoptive and foster homes over non-Indian homes for youth who are citizens or eligible to become citizens of federally recognized tribes. A multitude of children’s advocacy organizations regard ICWA as the “gold standard” for child welfare in the foster care and adoption systems.
U.S. Congress passed the landmark legislation in 1978 after decades of tribal advocacy addressing the U.S. government’s history of removing Indian children from their families at disproportionate rates and adopting them out to non-Indian, primarily white families.
Still, states place the vast majority of ICWA protection-eligible Native children in non-Native foster and adoptive homes.
Several non-Native couples and the state of Texas sued to overturn the law based on three main arguments. An anti-commandeering challenge, meaning the federal government was improperly telling states what to do, a challenge to Congress's authority to regulate Indian affairs, and an equal protection challenge alleging ICWA violated the equal protection clause of the 10th Amendment, which prohibits race-based discrimination.
As Street Roots reported in November, the Supreme Court ruling in Brackeen v. Haaland has far-reaching implications for tribal sovereignty.
Oregon and 11 other states have state-specific ICWA laws that could have been vulnerable to legal challenges if the Supreme Court struck down ICWA.
Tribes and Indian law experts urged the Supreme Court not to upend the nearly 50-year-old law that was aimed at lessening the impact of the cultural genocide caused by the U.S. government removing roughly one-in-three Native children from their homes to foster care and eventually non-Native adoptive homes in the mid-20th century.
“Brackeen is a resounding win for Indian nations. It solidifies the right to tribal sovereignty, undergirds the fact that the Constitution enshrines Congress with the power over Indian Affairs, not states, and upholds the fact that being an ‘Indian’ is at core a political designation rather than one based on race.”
— Brent Leonhard, attorney for the Confederated Tribes of the Umatilla Indian Reservation
However, anxiety turned to relief as the 7-2 ruling, authored by Justice Amy Coney Barrett, declined to take up any of the plaintiff’s arguments June 15. Justices Samuel Alito and Clarence Thomas were the lone dissenting votes.
Brent Leonhard, attorney for the Confederated Tribes of the Umatilla Indian Reservation, says the ruling is a victory for tribes.
“Brackeen is a resounding win for Indian nations,” Leonhard told Street Roots. “It solidifies the right to tribal sovereignty, undergirds the fact that the Constitution enshrines Congress with the power over Indian Affairs, not states, and upholds the fact that being an ‘Indian’ is at core a political designation rather than one based on race.”
The Supreme Court rejected several of the plaintiffs’ arguments based on standing, meaning the plaintiffs had no right to sue. Notably, among the arguments rejected on standing, plaintiffs argued ICWA violates the equal protection clause and discriminates against them because of their race. Legal experts viewed the challenge as an attempt to redefine Indian status as race-based rather than a political status, challenging a definition reaffirmed countless times by Congress and the Supreme Court in the past 200 years.
Prior to the ruling, Indian law experts said an equal protection challenge to ICWA could be the “first domino” in an effort to destroy Native families, erode mineral rights and weaken tribal sovereignty.
Clayton Dumont, chairman of the Klamath Tribes, applauded the favorable ruling in a June 15 statement.
“Of course, this decision is critically important for stopping those who would turn back the clock on tribal peoples’ ability to protect our children,” Dumont said. “But it is equally consequential because it underscores the long-understood reality that American Indian identities are first and foremost a function of our status as citizens of sovereign tribal nations that predate the United States — a status memorialized in our treaties with this country.
“Too many Americans need to be reminded, as the Supreme Court has just done, that we had these identities long before the European notion of ‘racial groups’ was constructed.”
Justice Neil Gorsuch released a separate, 32-page concurring opinion in Brackeen v. Haaland. His opinion offered vehement support for tribal sovereignty and a detailed history of the abuses carried out against Indigenous peoples at the hands of the U.S. government.
In his concurring opinion, Gorsuch detailed the U.S government's history of dealing with tribes as sovereign nations, as well as identifying ICWA as the direct result of the U.S. government’s history of forcibly placing Native children in residential boarding schools and the disproportionate removals of Indian children from their families.
He spoke directly to the attacks on tribal sovereignty underpinning the plaintiff’s arguments in a passage that resonated across Indian Country, including with Leonhard.
“Often, Native American Tribes have come to this Court seeking justice only to leave with bowed heads and empty hands,” Gorsuch wrote. “But that is not because this Court has no justice to offer them. Our Constitution reserves for the Tribes a place — an enduring place — in the structure of American life.
“It promises them sovereignty for as long as they wish to keep it.”
Indian law experts point to Gorsuch’s opinion in Brackeen v. Haaland, as well as his dissenting opinions in the other two Indian law cases before the Supreme Court this term, as cementing his position as the strongest supporter of tribal sovereignty on the Supreme Court bench.
“For those who want to understand the history and importance of the Indian Child Welfare Act and its critical role in holding back the tide of the United State’s historical policy of cultural genocide toward Indian nations, they should read Gorsuch’s concurrence,” Leonhard said.
Gorsuch’s opinion emphasized the law’s impact on protecting Native cultures and families.
“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,” Gorsuch wrote. “All of that is in keeping with the Constitution’s original design.”
Welcome decision
When it came to speaking up about ICWA, Indian Country spoke with a unified voice, including 497 federally-recognized tribes and 62 Native-led organizations signing an amicus brief in support of ICWA. An additional 31 child welfare organizations, 26 states, Washington D.C. and 77 members of Congress supported ICWA as it was challenged in the Supreme Court.
The Protect ICWA Coalition, consisting of the Portland-based National Indian Child Welfare Association, the National Congress of American Indians, the Association on American Indian Affairs and the Native American Rights Fund, cheered the ruling in a June 15 statement.
The coalition, which raised awareness about ICWA’s importance for Native peoples and the challenges it was facing, highlighted the importance of tribal sovereignty, saying tribes are “similar to states or foreign governments” with “inherent rights to self-government.”
ICWA has faced numerous challenges in federal courts, including a significant narrowing of the law in the 2016 Adoptive Couple v. Baby Girl Supreme Court case.
“Today, the Justices have sent a clear message that these biased, ahistorical attacks have no legal foundation and will not be tolerated,” the Protect ICWA Coalition wrote. “We hope this decision will lay to rest the political attacks (on ICWA), but let this case show that Indian Country and its many bipartisan allies are united in defense of Native children and of tribal sovereignty.”
On the horizon
While the ruling in Brackeen v. Haaland is unquestionably a major victory for Native nations, few, if any, are under the impression this is the final challenge to ICWA or tribal sovereignty.
In the week following the Brackeen ruling, the Supreme Court issued two unfavorable rulings for tribes. In a 7-1 ruling in Lac Du Flambeau Band of Lake Superior Chippewa Indians et. al. v. Coughlin, the court ruled sovereign immunity for tribes does not extend to bankruptcy court. Also in a highly consequential 5-4 ruling in Navajo Nation v. Arizona, the court ruled the U.S. government is not obligated to take “affirmative steps” to help the Navajo Nation procure clean water, where many of its citizens lack clean, running water.
The National Congress of American Indians hosted a panel of legal experts to discuss the Brackeen v. Haaland ruling June 20. NCAI President Fawn Sharp (Quinault Nation) said she was honored and joyful to be discussing a favorable ruling in Brackeen v. Haaland.
Chuck Hoskin Jr., Chief of the Cherokee Nation of Oklahoma, a speaker on the NCAI panel, said it was important to continue fighting to protect tribal sovereignty.
“We’re joyful, we’re emboldened, I think, by the victory, but we’re also tempered by centuries of occasional setbacks — and I know I’m understating when I’m saying occasional,” Hoskin said on the panel. “We know that there’s a host of other legal challenges that we have ahead across various aspects of federal Indian policy — we’ve gotta keep our foot on the gas, we can’t rest, but I think we can build future success based on this success.”
Experts on the NCAI panel said the strong language in the Brackeen ruling could be used by Native nations and child welfare advocates to encourage states' full compliance with the “letter and spirit” of the law.
“Our children, our future and our very existence as Native people will no doubt continue to survive and thrive just as our Creator intended and ancestors envisioned,” Sharp said. “Today, we honor every voice that joined us to make clear Tribal Nations have an inherent sovereign right to protect the interests of our children and future."
As Street Roots reported in November, states, including Oregon, fail to comply with some aspects of the law, such as notifying a tribe when it encounters an ICWA-eligible case.
A May 2020 report commissioned by the Oregon Department of Human Services Indian Child Welfare Act Compliance Committee found “for the most part,” Oregon was not in compliance with ICWA.
“The cases reviewed in the Assessment, Removal, Permanency, Guardianship, and Adoption stages were on average less than 25% compliant,” the report found. “Screening was slightly higher and fell in the range between 50-75% compliant. Areas of particular struggle appear to be the provision of active efforts and documentation of ongoing collaboration with the Tribe.”
The 2020 creation of Oregon’s state-specific ICWA law, otherwise known as ORICWA, helped strengthen and clarify the state’s responsibilities, which helped improve compliance, according to Leonhard. Updated figures detailing the state's compliance after ORICWA are not yet available.
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