Supreme Court Upholds Indian Child Welfare Act, Affirming Tribal Sovereignty and Family Rights

The United States Supreme Court has issued a ruling that protects tribal sovereignty and the rights of Native American families in adoption and foster-care proceedings involving Native children. The court's opinion in the case Haaland v. Brackeen upheld the federal Indian Child Welfare Act (ICWA), a law enacted in 1978. ICWA gives tribal governments exclusive jurisdiction over Native children who reside on reservations. It is considered the “gold standard” of child welfare policy and has protected Indian tribes and their most vital resource—Indian children—for 45 years.

In a 7-2 vote, the court reinforced ICWA by affirming an appellate court en banc ruling that had challenged some aspects of the law's constitutionality. The Supreme Court determined that ICWA does not discriminate based on race and does not impose an undue burden on states. The court did not rule on the merits of two other claims—an equal protection challenge to ICWA’s placement preferences and a challenge to a provision allowing tribes to alter those preferences—because the petitioners, which included the Brackeen family, lacked the standing to raise them.

In her majority opinion, Justice Amy Coney Barrett wrote, “The issues are complicated. But the bottom line is that we reject all of petitioners’ challenges to the statute, some on the merits and others for lack of standing.” 

Chief Justice John Roberts and Associate Justices Neil Gorsuch, Sonia Sotomayor, Elena Kagan, Brett Kavanaugh, and Ketanji Brown Jackson joined Barrett in the majority.

In a concurring opinion, Justice Gorsuch wrote that by adopting ICWA, “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.” 

Justices Clarence Thomas and Samuel Alito filed dissenting opinions.

The ruling was celebrated by Native Americans, advocates, and allies across Indian Country and on social media.

Cherokee Nation Chief Chuck Hoskins wrote on Twitter, “Today’s decision is a major victory for Native tribes, children and the future of our culture and heritage. It is also 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.”

In a statement, President Joseph R. Biden said, “I stand alongside Tribal Nations as they celebrate today’s Supreme Court decision. In the not-so-distant past, Native children were stolen from the arms of the people who loved them. They were sent to boarding schools or to be raised by non-Indian families—all with the aim of erasing who they are as Native people and tribal citizens. These were acts of unspeakable cruelty that affected generations of Native children and threatened the very survival of Tribal Nations. The Indian Child Welfare Act was our Nation’s promise: never again.”

Judith LeBlanc, board chair of NDN Collective, called the decision “a small win in the larger fight” to maintain Tribal sovereignty and cultural continuity. However, she cautioned, “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. Haaland V. Brackeen is part of a larger campaign to undermine Tribal sovereignty and gut the legal infrastructure that codifies Tribal sovereignty.”

Attorney Samantha Skenandore (Ho-Chunk Nation) of Quarles and Brady LLP told Tribal Business News that the decision reinforces the foundation of tribal sovereignty: tribal membership. “One of the pillars of sovereignty is to make laws and be governed by them,” Skenandore said. “And that doesn’t apply when your children are governed outside of the tribe. This [decision] means that tribes get to decide who their membership is based on whatever they decide, and they get to exercise their sovereignty.”

For Skenandore, the ruling is also deeply personal. Twenty years ago, ICWA protections allowed her tribe to place three teenage girls with her as a foster mother after they had been in 10 different foster homes. She re-introduced the girls to the Ho-Chunk tribe and their culture. Today, she has seven grandchildren through her foster daughters.

“We often talk about how thankful we are that we got to be together, and all three of them have said, ‘I think we would have died by suicide had we not been placed with you," Skenandore said.

“I feel relieved, on a personal level, I am so relieved that sovereignty, at least for now, is upheld. This is a huge breath of fresh air.”

Under ICWA, caseworkers in state foster care systems are required to make “active efforts” to keep Native children with their biological family or within their respective tribe if they are enrolled or acknowledged. If a child cannot be placed within the family, caseworkers must give preference to placing recognized Native children in other homes identified as Native American or American Indian. These preferences recognize tribal sovereignty and defer to its authority, without requiring a child to be placed in a Native home.

Congress passed ICWA on November 8, 1978, in response to the widespread and abusive practice of removing American Indian children from their homes and placing them with non-Native white families through adoption or foster care. The law was intended to protect the best interests of Indian children and promote the stability and security of Indian families.

Opponents of ICWA have argued that the law discriminates on the basis of race and prioritizes the interests of tribes over the needs of Native children.

The Haaland v. Brackeen lawsuit was initiated in 2018 by the state of Texas and three non-Native couples who sought to adopt or foster three Native children. A federal district court in Texas ruled that ICWA was unconstitutional. This decision was appealed to the Fifth Circuit, where a three-judge panel reversed the lower court's ruling and affirmed ICWA's constitutionality. The full Fifth Circuit then conducted an en banc review in November 2019. While this review upheld Congress's authority to enact ICWA, it also found some sections of the law to be unconstitutional. In September 2021, both sides of the litigation requested that the Supreme Court review the Fifth Circuit's decision, and the Court granted the petitions in February 2022. Oral arguments were heard in November 2022.

The case garnered widespread support for tribal nations. A total of 21 briefs were filed in support of ICWA, representing nearly 500 tribes, over 60 Native organizations, 23 states and the District of Columbia, 87 members of Congress, more than 30 Indian law professors, and 27 child welfare and adoption organizations, among others. Additionally, in recent months, some states have passed their own ICWA laws to provide additional benefits without altering or removing the federal law's application.