On June 15, 2023, the U.S. Supreme Court critically upheld the constitutionality of the Indian Child Welfare Act (ICWA) in a 7-2 decision written by Justice Amy Coney Barrett, in Haaland v. Brackeen.¹

Indian community members, advocacy groups, and family law practitioners awaited the decision with bated breath since oral arguments concluded on Nov. 9, 2022.

The Haaland decision validates and protects adoption practices that preserve the heritage of Indian children. This decision further solidifies the relationship between the federal government and federal Indian Tribes. Preserving ICWA conserves efforts to remediate a longstanding history of devastation for Indian communities in America. ²

At Issue

Among several plaintiffs in this consolidated SCOTUS case were the Brackeens, a non-Indian Texas couple who sought to adopt a baby from the Cherokee Nation. The child was ultimately placed within a Cherokee family.

Under ICWA, preference is given for Indian child placement within the child’s extended family and tribe.³

Plaintiffs in this case, who sought to invalidate ICWA, argued that ICWA is a race-based classification that violates the Equal Protection clause. They further advanced that the only preference that should be considered is the “best interest of the child” standard.

Haaland asked two significant questions of ICWA:

• does ICWA’s placement preferences preference Indian adoptive families in child-placement proceedings for Indian children racially discriminate? and

• does this placement preference exceed Congressional authority, expropriating decision-making power in child placement which is traditionally an exclusive power of the States?

About the Indian Child Welfare Act

ICWA provides federal protections under any State law child-placement proceeding involving Indian children. ICWA prioritizes placement “with (1) a member of the child’s extended family; (2) other members of the Indian child’s tribe; or (3) other Indian families.”⁴

ICWA codifies Congressional recognition “that there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children and that the United States has a direct interest, as trustee, in protecting Indian children.”⁵

When Congress created ICWA in 1978, it recognized and codified the unique values of tradition and culture in Indian Tribes.

Before ICWA, Indian children were more frequently placed in non-Native families.⁶ Before ICWA, “one report found that 25 to 35% of all Native children were being removed from their families and placed with non-Native custodians or parents.”⁷ The separation was often the result of misconceptions of those who viewed Indian children’s experiences as inferior to what non-Indian families could provide.

It is difficult to conceive of pervasive separation from Indian culture as serving an Indian child’s “best interests,” which are the centerpiece of family law.

ICWA provides additional federal protections for child placement that help facilitate the continued connection between the child and their tribe. Extended families within an Indian tribe act as a support system for Indian children and provide continued support for the child without depriving them of their identity. Indian tribal communities know their children, and that cultural bond runs deeply.

Support for ICWA

An astonishing bipartisan outpouring of support for ICWA is seen in the “497 Tribal Nations, 62 Native organizations, 23 states and DC, 87 congresspeople, and 27 child welfare and adoption organizations, and many others signed on to 21 briefs submitted to the U.S. Supreme Court.”⁸

In the amicus brief submitted by the 497 Tribal Nations and 62 Tribal Organizations in support of ICWA, it was argued that the plaintiffs “mischaracterize[d] core aspects of tribal membership and its centrality in furthering tribal sovereignty, and disregard the importance of kinship and extended family to Indian children and their Tribes.”

The brief intricately covered the essential considerations when Congress was drafting ICWA. Congress concluded that states consistently failed to account for the tribal relationships and cultural circumstances. Congress found that states tended to remove Indian children from their homes precisely because their immediate families leaned on their extended relatives to child rear and because their homes “lacked the amenities conventionally found in non-Indian society.”

On the ICWA and the Decision

Opponents of ICWA asserted that because membership in a tribe is determined by lineage, laws like ICWA based on membership are “per se” discriminatory.

Tribal membership, however, is a political designation aimed at facilitating self-government, not a racial designation.⁹ Morton v. Mancari¹⁰ held that a tribal preference in hiring for the Bureau of Indian Affairs was wholly legitimate “because the classification [as Indian] was based on tribal membership, which is citizenship in a sovereign nation.”¹¹

This recognition of sovereignty, a political designation, is a critical component of the trust responsibility between the U.S. Government and Tribal nations developed through hundreds of years of trial and severe error. The same responsibility “has long extended to Indian children, a responsibility initially recognized in treaties that provide federal services, education, and trust funds” to support them.¹²

Article I, Clause 3, Section 8 of the United States Constitution provides Congressional power to “regulate commerce… with the Indian Tribes.” Congress has further established its responsibility to protect and preserve Indian life “through statutes, treaties, and the general course of dealing with” the Tribes.¹³

It seems to follow naturally that Congress must have the power to require the preference of child placement within an Indian tribe.

As to the contention that Congress does not have the authority to pass a federal law and require states to comply, proponents of ICWA point out that Congress has this explicit power through the Supremacy Clause.¹⁴ Federal preemption exists in many facets of the law. It is not unreasonable that ICWA direct states to treat its sovereign Indian nations as Congress sees necessary.

Conclusion: A Validation

Had ICWA been found unconstitutional, crucial legal mechanisms would have begun to unravel. The myriad treaties between the federal government and Indian nations would have been subject to further scrutiny absent recognized tribal sovereignty. Without tribal sovereignty, everything from “... gaming rights, mineral rights, tribal recognition” and treaty status would remain uncertain.¹⁵

The collateral damage could also have devastated Indian communities without reservation land, “effectively terminat[ing] Congress’s relationship to and obligations towards millions of Indians currently living off-reservation.”¹⁶

The long history of mistreating, assimilating, displacing, and extinguishing Indian people in this country is not forgotten, nor is it remedied by ICWA. Still, ICWA protects Indian children as an extension of individual tribal efforts to prevent unnecessary separation of Indian children from their homes, culture, and self-identities. ICWA does not simply encourage but affirmatively requires that the best interest of Indian children includes prioritizing preserving Indian children’s heritage.

The Court’s decision in Haaland v. Brackeen monumentally validates and reinforces the significance of protecting the culture and identity of Indian community members by fortifying the federal government's relationship with Indian communities once more.

This article was originally published on the State Bar of Wisconsin’s Children & the Law Section Blog. Visit the State Bar sections or the Children & the Law Section webpages to learn more about the benefits of section membership.

Endnotes

¹ Haaland v. Brackeen, 143 S. Ct. 1609 (2023).

² “Three-Minute Legal Talks: The Supreme Court’s Ruling on Brackeen v. Haaland,”University of Washington School of Law, June 23, 2023.

³ 25 U.S.C. § 1915(a).

⁴ Id.

⁵ 25 U.S.C.A. § 1901 (West).

⁶ Brief of 497 Indian Tribes and 62 Tribal and Indian Organizations as Amici Curiae in Support of Federal and Tribal Defendants at 6, Brackeen v. Haaland, No. 21-380 (petition for cert. filed Sep. 3, 2021).

⁷ Rachel Reed, “Supreme Court Preview: Brackeen v. Haaland,” Harvard Law Today, Oct. 31, 2022.

⁸ Supporting Native American Children & Families’ Rights, The Native American Rights Fund.

⁹ Id. at 14, citing Morton v. Mancari, 417 U.S. 535, 94 S. Ct. 2474 (1974).

¹⁰ Morton v. Mancari, 417 U.S. 535, 94 S. Ct. 2474 (1974).

¹¹ Reed, supra.

¹² Brief of 497 Indian Tribes and 62 Tribal and Indian Organizations as Amici Curiae in Support of Federal and Tribal Defendants, supra at 4.

¹³ 25 U.S.C.A. § 1901 (West).

^1​4 Reed, supra.

¹⁵ “Three-Minute Legal Talks: Brackeen v. Haaland,” supra.

¹⁶ Brief of 497 Indian Tribes and 62 Tribal and Indian Organizations as Amici Curiae in Support of Federal and Tribal Defendants, supra at 24.