A victory for tribal sovereignty: Supreme Court Upholds the Indian Child Welfare Act

In this edition of the Reconciliation through Education blog, learn about the Supreme Court’s recent ruling on the Indian Child Welfare Act and explore related resources from Native voices.

Pictured: Kimberly Jump-CrazyBear, (Osage & Oglala), demonstrates in support of ICWA at the Supreme Court, November 2022. Image credits to Jourdan Bennett-Begaye/Indian Country Today and The Signal.

On June 15th, 2023, the Supreme Court upheld the Indian Child Welfare Act (ICWA), a federal law considered the “gold standard” of child welfare policy. The act, which gives tribes exclusive jurisdiction over cases involving the custody of Indigenous children, was called into question when a non-Native family brought forth a lawsuit challenging it on several grounds.

Passed by Congress in 1978 in an effort to help keep Native children with their families and communities and protect them against forced removal from their cultures, ICWA guarantees a tribal voice in determining the placement of Native children into foster or adoptive homes. In the decades prior to its passage, over one-third of Native children had been removed from their families, with most placed permanently into non-Native households. Often, the children were removed from intact families on the grounds of perceived poverty rather than any suspicion of neglect or abuse.

These family separation efforts formed part of the US government’s Indian Termination & Relocation policy, a doctrine that underpinned federal relations with tribes in the mid 20th-century. But in the wake of the American Indian Movement, efforts by grassroots organizers and tribal leaders had begun to shift this policy, with the passage of the Indian Child Welfare Act and other federal laws signaling the US Government’s mounting focus on tribal sovereignty and self-determination.

Pictured: A fancy shawl dancer celebrates the Supreme Court's decision to uphold ICWA, June 2023. Image credits to ABC News.

In 2018, Texas parents Dr. Jennifer and Chad Brackeen set forth a challenge to the Indian Child Welfare Act. The couple, who are non-Native, wished to obtain custody of two Diné (Navajo) siblings after forming a bond with the elder sibling as their foster child - but under the terms of ICWA, placement with a Native family member or, in the absence of a willing and able family member, a non-relative Native family within the child’s tribe, is prioritized. The Brackeen’s case contended that ICWA is unconstitutional, arguing that its provisions violate the Equal Protection Clause, and that its terms undermine state jurisdiction in cases relating to family law.

Other non-Native couples who had attempted to adopt Indigenous children joined the litigation, which rose to the attention of federal courts in 2022. Arguments in support of their collective case were heard by the Supreme Court last November - ultimately, the Court did not side with the Brackeens et. al, with 7 out of 9 justices ruling in favor of the constitutionality of ICWA last month. In a majority opinion authored by Justice Amy Coney Barrett, the Court asserted the right of Congress to create legislation regarding tribal affairs and child welfare, but did not address claims that ICWA violates the Equal Protection Clause.

While the Indian Child Welfare Act has been upheld on a federal level, threats to its fulfillment in individual states and municipalities persist - only 14 state legislatures have written ICWA’s provisions into their own laws.

Dive deeper into this topic at the resources linked below.


Resource Links

On ICWA and the history behind its passage:

A summary of ICWA from the National Indian Child Welfare Association:
https://www.nicwa.org/about-icwa/

"Dawnland," a 2018 documentary chronicling the removal of Native children from their homes on the Wabanaki Nation in Maine throughout the 20th century, and the Truth and Reconciliation Commission aiming to heal the wounds of this tragic history: https://dawnland.org/

"ICWA History and Purpose" from the Montana Department of Health & Human Services:
https://dphhs.mt.gov/cfsd/icwa/icwahistory

"The Brutal Past and Uncertain Future of Native Adoptions" from the New York Times:
https://www.nytimes.com/2023/05/16/nyregion/indian-child-welfare-act-supreme-court.html:

On Haaland v. Brackeen, the Supreme Court Case that nearly overturned ICWA, and the Supreme Court ruling in favor of ICWA:

"Who Can Adopt a Native American Child? A Texas Couple vs. 573 Tribes" from the New York Times:
https://www.nytimes.com/2019/06/05/health/navajo-children-custody-fight.html

Full text of the Supreme Court's Majority Opinion on Haaland v. Brackeen:
https://www.supremecourt.gov/opinions/22pdf/21-376_7l48.pdf

"Win for tribes as high court upholds ICWA" from the Cherokee Phoenix:
https://www.cherokeephoenix.org/news/win-for-tribes-as-high-court-upholds-icwa/article_86ac1e80-0bb0-11ee-b315-7ffd756ebbf1.html

Actions to take in support of protections for Native children:

Urge your local representatives to support the implementation of ICWA in your state:
https://action.aclu.org/send-message/protect-native-families

Additional educational resources to explore from Native voices on this topic, compiled by the Protect ICWA Campaign: https://linktr.ee/protecticwa

Sources for this newsletter include: Coverage of this topic from Native News Online, ABC News, the New York Times, the National Indian Child Welfare Association, and NPR.