Supreme Court upholds Indian Child Welfare Act, a victory for tribal sovereignty

WASHINGTON – In a victory for tribal sovereignty, the Supreme Court on Thursday upheld a landmark law intended to protect Native American communities by giving preference to tribal members in the adoption and foster care of Indigenous children.

Congress enacted the Indian Child Welfare Act in 1978 to address generations of harm done by the systematic removal of Native children from their families, first to boarding schools where they were forced to abandon their language and culture – and where many died – and later through aggressive foster care and adoption agencies.

The 7-2 decision defied expectations after most of the court’s six conservative justices expressed skepticism toward the law during oral arguments in November. Three non-Native families who had sought to adopt Native kids – joined by the state of Texas – challenged the law by making arguments that questioned fundamental tenets of tribal sovereignty.

“The issues are complicated,” Justice Amy Coney Barrett wrote in the majority opinion. “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.”

Barrett was joined in the majority by three of her fellow conservatives – Neil Gorsuch, Brett Kavanaugh and John Roberts, the chief justice – and by the court’s three liberal justices, Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson. Justices Clarence Thomas and Samuel Alito dissented.

The decision was celebrated by tribes and child welfare groups, including the Protect ICWA Campaign, a coalition that includes the National Indian Child Welfare Association, the National Congress of American Indians, the Native American Rights Fund, and the Association on American Indian Affairs.

“We are overcome with joy that the Supreme Court has upheld the Indian Child Welfare Act,” the Protect ICWA Campaign said in a statement. “The positive impact of today’s decision will be felt across generations.”

Before ICWA took effect, according to a congressional investigation lawmakers cited at the time, as many as one-third of Native children had been taken away from their tribal homes – even when members of their extended family or tribe were willing to adopt them. During that same period, more than three-quarters of Native families living on reservations lost at least one child to the foster care system, according to the Montana Department of Public Health and Human Services.

“There is no resource that is more vital to the continued existence and integrity of Indian tribes than their children,” the 1978 legislation notes, adding that “an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies.”

Leaders of the Confederated Tribes of the Colville Reservation were involved in the efforts to get Congress to pass the law, Chairman Jarred-Michael Erickson noted in a statement celebrating Thursday’s decision.

“Since then, the Colville Tribes has used ICWA to protect the best interests of Colville children and families in states and counties around the country,” Erickson said. “Current leadership of the Colville Tribes was honored to sign on in support of the tribal amicus brief which was filed in the case decided today. Thankfully, the Supreme Court declined the plaintiffs’ invitation to turn the clock back 45 years.”

Erickson thanked the Native American Rights Fund and other advocacy groups that successfully defended the law in court, saying they “did a fantastic job of ensuring that the Supreme Court heard the voices of tribal people.” He also thanked the tribal and state employees, law enforcement officers and others who help to implement the law.

“The immediate threat to all of this good work is now past,” he said. “The work will continue until every Indian child is safe and healthy.”

The plaintiffs argued that Congress didn’t have the authority to enact ICWA and that states shouldn’t have to enforce it, under the principle that the 10th amendment lets Congress pass federal laws that override state laws but doesn’t force states to enforce those federal laws. The court rejected that claim, with Barrett writing that “Congress’s power to legislate with respect to Indians is well established and broad.”

The families seeking to adopt – all of whom are white – also argued that the law unfairly discriminates against them on the basis of race. Laws that apply differently based on race are subject to greater scrutiny under the 14th amendment’s Equal Protection Clause.

The majority opinion didn’t directly address this question, because the court ruled that the families hadn’t suffered the kind of harm that would give them standing to bring the case. But Barrett’s opinion cited the high court’s longstanding precedent holding that membership in a federally recognized tribe is a political status, not a racial identity.

In a statement, the Goldwater Institute, a right-leaning advocacy group that filed an amicus brief in support of the plaintiffs, called the court’s decision “only the most recent injustice that the federal government has inflicted on Native Americans,” but added that “it is at least gratifying that the Court left open the door to future lawsuits challenging the race-based injustices caused by ICWA.”

Sen. Patty Murray, D-Wash., hailed the ruling as “an important win for Tribal sovereignty and Tribes in Washington state and across the nation.”

“For decades, the Indian Child Welfare Act has kept Native children connected to their communities and their cultures – helping to right the wrongs our nation brutally inflicted on Native children for decades – and it has played a key role in keeping Native American families together,” Murray said in a statement.

Sen. Maria Cantwell, another Washington Democrat who along with Murray was among 87 House and Senate lawmakers to sign a bipartisan amicus brief in support of ICWA, said in a statement, “The Supreme Court made the right decision today in recognizing the authority of Congress to pass the Indian Child Welfare Act.”

Gorsuch, a conservative justice who has earned a reputation as a frequent defender of tribes’ treaty rights, wrote a concurring opinion “to add some historical context.”

“To appreciate fully the significance of today’s decision requires an understanding of the long line of policies that drove Congress to adopt ICWA,” he wrote in his concurrence, which Sotomayor and Jackson joined.

Citing a recent report from an initiative created by Interior Secretary Deb Haaland, the first Native American to lead the agency responsible for federal-tribal relations, Gorsuch catalogued the long history of federal and state government agencies separating Indigenous children from their families and traditions.

In a statement, Haaland called the court’s decision “a welcome affirmation across Indian Country of what presidents and congressional majorities on both sides of the aisle have recognized for the past four decades.”

After signing more than 150 treaties with tribes that included provisions to establish schools where Native children could study while living at home, Gorsuch wrote, by the late 1870s the federal government’s goals “turned toward destroying tribal identity and assimilating Indians into broader society.” He cited the founding of the Carlisle Indian Industrial School in Pennsylvania in 1879, whose director infamously summed up the school’s mission by saying, “All the Indian there is in the race should be dead. Kill the Indian in him, and save the man.”

In his statement, Erickson said the Colville Tribes especially appreciated Gorsuch’s concurring opinion, “as it describes the federal boarding school and removal policies that ICWA was intended to remedy and puts today’s decision into the proper historical context.”

President Joe Biden, who voted for ICWA as a senator, hailed the ruling in a statement, saying ICWA “safeguards that which is most precious to us all–our children.”

While the plaintiffs were relatively quiet after the ruling, Matthew McGill, a lawyer representing Chad and Jennifer Brackeen, the Texas couple who originally challenged ICWA, said in a statement that their main concern is what the outcome means for the 5-year-old girl at the center of the case, who has lived with them for most of her life.

The Brackeens had adopted the girl’s half-brother, born to a Cherokee father and a Navajo mother, after both tribes agreed to the placement. But when they tried to adopt the girl, the Navajo Nation sought to have her placed with her great-aunt. While ICWA gives priority to tribal members seeking to adopt Indigenous children, it does not prohibit their adoption by non-Native parents.

Texas Attorney General Ken Paxton, who has been impeached by the state’s House of Representatives and faces criminal charges in an unrelated matter, did not release a statement on the case Thursday.

The Nez Perce Tribe hailed the court’s decision to uphold a law “designed to protect children by preserving connection with their families, communities, and culture.”

“Prior to passage of the law, systemic issues of children being improperly removed from families and homes threatened the very fabric of our tribal communities,” the tribe said in a statement. “We applaud the Court in rejecting the baseless attacks on the constitutionality of the law and instead supporting the sovereignty and authority of tribal governments and Congress to address this issue. We hope this decision ends efforts to circumvent the law and instead promotes compliance with the law and its important policy objectives.”

The Quinault Nation on the Olympic Peninsula intervened in the case to defend ICWA, along with the Cherokee Nation, the Morongo Band of Mission Indians and the Oneida Nation. In a statement, the tribes’ leaders called the court’s decision “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,” they said. “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.”