In a 7-2 decision, the United States Supreme Court on Thursday affirmed the constitutionality of a federal law meant to keep Indian children with their families and tribes.
The Indian Child Welfare Act of 1978 was passed in response to federal policy allowing Indian children to be removed from their homes by state social-service workers and put up for adoption by white families or sent to religious boarding schools, where they lost connection to their cultures and identities.
The majority opinion in Brackeen v. Haaland, written by Associate Justice Amy Coney Barrett, rejected arguments by the state of Texas and individual plaintiffs that the act discriminates against white families based on race and allows Congress to overstep its authority by directing states to carry-out federal law.
“The issues are complicated,” Barrett wrote, “but the bottom line is, we reject all the petitioners’ challenges to the statute, some on the merits and others for lack of standing.”
Barrett explained that Article I of the Constitution, specifically the Indian Commerce Clause, grants Congress the exclusive power to regulate tribal affairs, and that the plaintiff’s claim that they were discriminated against for being white wasn’t strong enough because they already successfully adopted an Indian child.
Associate justices Neil Gorsuch and Brett Kavanaugh wrote concurrent opinions. Gorsuch wrote that the court’s decision ensures tribal members can raise their children without interference from states or third parties. Kavanaugh wrote that the court’s majority opinion leaves the equal protection question — that which asks if the ICWA discriminates based on race — unanswered for lack of standing. Kavanaugh wrote the claim can still be argued in lower courts.
“In my view, the equal protection issue is serious,” Kavanaugh wrote. “Courts, including ultimately this Court, will be able to address the equal protection issue when it is properly raised by a plaintiff with standing—for example, by a prospective foster or adoptive parent or child in a case arising out of a state-court foster care or adoption proceeding.”
Two justices, Clarence Thomas and Samuel Alito, wrote the dissenting opinions, which argue the majority decision ignores that family law is the purview of the states, and upholding the ICWA directs state courts to place Indian children with Indian caretakers even if it’s not in the best interest of the child.
Federal Indian Law experts called the decision a major victory for tribal nations.
Mike McBride III, an Indian law attorney in Tulsa with the Crowe and Dunlevy law firm, said he was pleased the U.S. Supreme Court upheld the ICWA based on of the Constitution’s Indian Commerce Clause, which grants a broad authority to Congress to legislate matters relating to tribal nations and individuals.
He pointed to cases cited in the opinion such as Cotton Petroleum Corp v. New Mexico and United States v. Holliday, which together say congress can legislate tribal affairs beyond commerce as they apply to nations and individuals, as foundational decisions by the Court that ensure Congress was acting within its powers when it passed the ICWA in the seventies.
“It’s a resounding victory for tribes and for native families” said Kathryn Fort, who directs the Federal Indian Law Clinic at Michigan State University and is a frequent contributor to the blog Turtle Talk, which discusses tribal legal issues.
Fort said that as of right now, the implementation of the ICWA is business as usual.
“I’m sure as we move through the coming days there might be some language in there that affects practice, but as of right now, we can get back to doing what those of us who do this work do best: work on behalf of families to protect the most vulnerable people in the child protection system,” Fort said.