ICWA STANDS
By VIVIAN LAMOORE, INAAJIMOWIN EDITOR
Indian Country is breathing a little easier after the Supreme Court of the United States (SCOTUS) ruled on June 15, 2023, against the Brackeen’s and upheld the constitutionality of the the Indian Child Welfare Act (ICWA). The opposite decision could have had devastating consequences for Native American children and families, jeopardizing key foundations for all federal Indian law undermining the status of tribal sovereignty entirely. This monumental decision ensures tribal “sovereignty for as long as [tribes] wish to keep it,” Justice Gorsuch wrote.
“This case demonstrates how our rights to something as basic as our children could have been taken away. For Tribal Governments, it shows that every day is a struggle to keep our sovereignty," Chief Executive Melanie Benjamin said. "Miigwech to the attorneys, tribal leaders, and child welfare advocates who worked so hard to get the Court to do the right thing, and the seven Justices on the Court who kept federal Indian law intact.”
Congress enacted ICWA in 1978, after concerns that Native American children in need of foster care or adoption were being moved by non-tribal agencies to non-Native families. Prior to enacting ICWA, many Native American children were placed in non-Native foster care or adoptive homes. This often led to the loss of their tribal identity and connection to their communities. The intent of Congress under ICWA was to “protect the best interests of Indian children and to promote the stability and security of Indian tribes and families” (25 U.S.C. § 1902).
When a court determines that a child cannot be safely returned to the custody of the parent or custodian, the law prioritizes placing Native American children with extended family, tribal adoptive or foster families, and is intended to protect the rights of Native American children and families in child welfare proceedings, making it harder to separate them from their communities and ensuring that their cultural heritage and identity are preserved.
The Haaland v. Brackeen case challenged ICWA as unconstitutional on multiple grounds, stating it exceeded federal authority, infringed on state sovereignty, and was discriminating on the basis of race.
But SCOTUS did not agree as shown by the 7-2 decision.
Justice Barrett delivered the 133-page opinion of the Court. “This case is about children who are among the most vulnerable: those in the child welfare system… As Congress put it, there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children.”
“The issues are complicated,” Justice Barrett wrote. “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.”
In a concurrent opinion, Justice Gorsuch wrote that "the Court safeguards the ability of tribal members to raise their children free from interference by state authorities and other outside parties."
As what is likely one of the most powerful statements in the SCOTUS opinion, Justice Gorsuch added, “Often, Native American Tribes have come to this Court seeking justice only to leave with bowed heads and empty hands. 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. And it secures that promise by divesting States of authority over Indian affairs and by giving the federal government certain significant (but limited and enumerated) powers aimed at building a lasting peace. 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. All of that is in keeping with the Constitution’s original design.”
Had the opinion been flipped, it could have brought far-reaching damage, not only to Indian child welfare, but potentially to other areas of Federal Indian Law as well, including challenging tribal sovereignty and the basic survival of tribes. Testifying before Congress, the Tribal Chief of the Mississippi Band of Choctaw Indians was blunt: “Culturally, the chances of Indian survival are significantly reduced if our children, the only real means for the transmission of the tribal heritage, are to be raised in non-Indian homes and denied exposure to the ways of their People.”
"I don't know that I have ever wept (tears of joy anyhow) reading a Supreme Court opinion before," Caleb Dogeagle, Mille Lacs Band Solicitor General said.