SCOTUS to Decide Constitutionality of ICWA
What's at stake? Everything.
By VIVIAN LaMOORE, EDITOR
On November 9, the Supreme Court of the United States (SCOTUS) heard oral arguments in Brackeen v. Haaland, a case that will decide the constitutionality of the Indian Child Welfare Act of 1978 (ICWA). ICWA protects the well-being and best interests of Indian children and families by upholding family integrity and stability, and by giving a preference to custody decisions that keep Indian children connected to their community and culture. ICWA also reaffirms the inherent rights of tribal nations to be involved in child welfare matters that involve their citizens. A Supreme Court decision is expected in early 2023.
The core argument in this case lays in the question: Who is an Indian? More specifically, is being an Indian a political classification or racial classification? With over 200 years of Indian law, including treaties, having been created and set as precedence based on Indian being a political classification, should the Supreme Court’s final opinion determine Indian to be a racial classification, the entire house of cards of Indian law, including treaties, could tumble.
Tadd Johnson, legal consultant to the Mille Lacs Band of Ojibwe and former Mille Lacs Band Solicitor General explained this case is perhaps “the most significant case,” to go before the Supreme Court in this century. “The worst possible scenario is if they look at the whole thing and said, ‘Wait a second. We have been wrong for the last 200 years and we cannot have these special things for Indians anymore because they are a race and we cannot give a race special treatment like an Indian Health Service, Bureau of Indian Affairs, or Indian Gaming Regulatory Act.’” Johnson said. “…That would be taking taking away our political designation and overturning 200 years of precedent with regards to the way the [Federal Government] treat being a Native American. It could be the beginning of the end of Federal Indian Law.”
This Supreme Court case stems from an adoption case in the state of Texas. Chad and Jennifer Brackeen, a non-Native American couple with two biological children, filed suit last October for the right to adopt their Native American foster child who had lived with them for more than a year. A state court had denied their adoption petition based on ICWA, which gives adoption placement preference to biological family members of Native American children, other members of the child’s tribe, or other Native American families.
Texas Attorney General Ken Paxton ruled in favor of the Brackeens, arguing that the law unlawfully “elevates a child’s race over their best interest.” That case has since been settled and the Brackeens have adopted the child, but the challenge to the law itself has gone on to the Supreme Court.
Native American tribes argue they are individual sovereign nations, and as such, their relationship with the United States is political, not racial. U.S. Justice Department attorneys stated that due to tribal sovereignty over their citizens and an established interest in the well-being of their children, “the question of how to weigh a Native child’s cultural lineage in child welfare proceedings is different than for children of other races that don’t have that legal history,” they argued to the Supreme Court.
The Mille Lacs Band signed onto an Amicus Brief in the Brackeen v. Haaland case, along with 61 other federally recognized tribal nations. “[The Band] took a stand to protect the ICWA,” Johnson said.
ICWA was enacted by Congress in 1978 in response to the extraordinarily high number of Indian children who were being removed from their families by public and private agencies and placed with non-Indian families. In the late 19th and early 20th centuries, the federal government forced Native American children to leave their homes and tribes to attend boarding schools. The boarding school practices forbid Native American children from using their own languages or their own names, as well as from practicing their religion and culture. They were given new “White” names, White clothes, and White haircuts, and told they must abandon their way of life because it was inferior to White people’s, according to History.com.
The now well-known phrase to describe the philosophy of assimilation: "Kill the Indian, and save the man," was delivered in a speech by U.S. Army Captain Richard Henry Pratt in 1892. The ideas expressed in Pratt's speech are central to the development of the Carlisle Indian School (founded 1879) and other boarding schools across the country, which aimed to "civilize" and "Americanize" Native Americans, according to the Carlisle Indian School Digital Resource Center.
Indian boarding schools and assimilation continued well into the 1970s. ICWA was enacted as a broad protection for Native children, to allow them to remain with their Native families and tribes. It required state courts to notify tribes when an Indian child is removed from their family, and it required that, in foster and adoption placement, preferences be given first to the child's extended family, then to other members of the tribe. And if neither is available, the preference is for a child to be placed with a different tribe. ICWA also sought to change decades of policies and actions by the federal government to dismantle tribes and tribal families. In addition, the act also recognized the sovereignty of the 574 federally recognized tribes in the United States by stating that tribal nations should have a say in what happens to their youngest citizens.
The Amicus brief states: “Congress enacted ICWA as an exercise of its well-established federal trust responsibility for Tribes and their members, legislating against the backdrop of a nationwide crisis: the wholesale removal of Indian children from their families by state and private child welfare agencies — often without due process — at rates far higher than those of non-Indian families. Congress carefully crafted ICWA to protect the legal rights of Indian children and parents and to incorporate important jurisdictional and political interests of Tribes in decisions concerning the welfare and placement of their children.”
Johnson said this Supreme Court case has broad implications across all of Indian law and on laws governing the federal relationship with Native tribes. Supreme Court justices acknowledged during the November 9 hearing that a ruling of racial determination would result in the Court to “be busy for the next many years striking things down.”
“This case is really important and could signal the beginning of the end of Indian law as we know it,” Johnson said. “We are watching this decision very carefully.”