'FELT ACROSS GENERATIONS:' Supreme Court upholds Indian Child Welfare Act

Elizabeth Brewer, The Record-Eagle, Traverse City, Mich.
·5 min read

Jun. 16—TRAVERSE CITY — On Thursday, the U.S. Supreme Court upheld the constitutionality of the Indian Child Welfare Act in one of the biggest challenges to the legislation since its inception 43 years ago.

The high court ruling dismissed arguments in the Bracken v. Haaland case, in which three white families, the state of Texas and a number of other states, argued that ICWA is race-based and unconstitutional, violating the Equal Protection Clause of the 14th Amendment.

They also claimed that ICWA improperly gives the federal government too much power over adoptions and foster placements and puts tribal interests ahead of those of children.

According Child & Family Services of Northwestern Michigan, there are 72 children under the care of CFS, 10 of whom are Native American, ranging in age from infancy to young teens. But only two houses are licensed "tribal foster homes" in the 30 counties they serve — one of them in the Grand Traverse region.

Both the Grand Traverse Band of Ottawa and Chippewa Indians and the Little Traverse Bay Bands of Odawa Indians were listed, alongside eight other Michigan sovereign Tribal Nations, in an amicus brief filed in the Fifth Circuit Court of Appeals in support of ICWA, which affirms the rights of Indigenous children to be kept in their communities.

Michigan Indian Legal Services, Inc. also was a party to the brief.

"Four hundred ninety-seven Tribal Nations, 62 Native-led organizations, 23 states and DC, 87 congresspeople, and 27 child welfare and adoption organizations filed an amicus brief against the plaintiffs because ICWA has proven that Native children benefit from being a part of Native communities," Native Organizers Alliance wrote in a statement Thursday. "ICWA has protected Native children, ensuring their ongoing sense of community and cultural identity by prioritizing keeping them with family (including extended family) or members of their Tribe.

"Keeping children within their communities and connected to their culture is a child welfare practice that should be expanded, not eliminated."{/div}

According to legal documents filed with the Fifth Circuit Court of Appeals, Brackeen v. Haaland sought the finding of ICWA as unconstitutional after a 2018 decision in a federal district court in Texas held that ICWA violates the Constitution.

In regard to state child custody proceedings involving Native children, the 1978 Indian Child Welfare Act requires states to notify tribes and seek placement with the child's extended family, their fellow tribal members or families of other tribes.

Before ICWA was enacted, 25% to 35% of Native children were being taken from their families and placed with adoptive families, in foster care, or in institutions, according to two studies conducted in 1969 and 1974 by the Association on American Indian Affairs. Ninety percent of those placements were in non-Native homes.

The Supreme Court ruled, 7-2, against the challenge, with Justices Samuel Alito and Clarence Thomas dissenting.

Writing for the majority opinion, Justice Amy Coney Barrett said the "issues are complicated," but the "bottom line is that we reject all of petitioners' challenges to the statute."

Nearly two dozen state attorneys general and majority of the 574 federally-recognized tribal nations called on the court to uphold the ICWA. Several tribal nations and organizations filed briefs in the case.

"We are overcome with joy that the Supreme Court has upheld the Indian Child Welfare Act, which is widely regarded as the gold standard of child welfare," Amory Zschach, communications director for the National Indian Child Welfare Association, said in a statement. "One thing is certain: ICWA is crucial for the safety and well-being of Native children and families and the future of Native peoples and Tribal Nations.

"The positive impact of today's decision will be felt across generations."

Zschach added, "While today's victory is to be celebrated, this will not be the last time a case against Tribal rights will be brought to the courts. Haaland V. Brackeen is part of a larger campaign to undermine Tribal sovereignty to set a precedent that guts the legal infrastructure that codifies Tribal sovereignty."

In a statement, Cherokee Nation Prinicipal Chief Chuck Hoskin Jr. said the decision is a major victory for Native tribes, children, and the future of his tribe's 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. 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," Hoskin said. "By ruling on the side of children's health and safety, the U.S. constitution, and centuries of precedent, the justices have landed on the right side of history.

"With these latest political attacks on ICWA now behind us, we hope we can move forward on focusing on what is best for our children."

Choctaw Nation of Oklahoma Chief Gary Batton said his tribe is glad to see that the Supreme Court recognized the important benefits of ICWA and allowed the law to stand.

"Congress passed the Indian Child Welfare Act to right the extreme historical injustices committed against Native children and their families," Batton said. "The law remains a critical part of protecting Native American heritage and tribal sovereignty,"

Sara Serrano from CNHI Oklahoma & Traverse City Record-Eagle Report For America reporter Sierra Clark contributed to this article.