Supreme Court hears arguments in pivotal Indian Child Welfare Act case

The U.S. Supreme Court heard arguments Wednesday in a case challenging the Indian Child Welfare Act, a case that many Native people fear may have broader implications for tribal sovereignty and self-governance.

An attorney attempting to persuade the high court to set aside the act, which many child advocacy organizations call the gold standard of child welfare policy, seemed to bear weight to those fears.

"I think there is definitely a concern in Indian Country," said Kathryn Fort, a law professor at Michigan State University. "The worst case is that overturning ICWA could deeply harm Native children and families."

The Indian Child Welfare Act, known as ICWA, was enacted in 1978 to address the near-wholesale removals of Native children from their homes, a process that sent most of them to non-Indian adoptive families. Up to 35% of all Native children had been removed from their homes and 85% of them were sent to non-Indian homes before ICWA became law, according to the National Indian Child Welfare Association, known as NICWA.

The current case, Brackeen vs. Haaland, is asking the Supreme Court to declare at least some portions of the law unconstitutional. The case consolidated three similar cases, all involving non-Indian foster parents seeking to adopt Native children who had been removed from their homes.

According to the NICWA, Native children are still overrepresented in state child welfare agencies, and 56% of Native children who are adopted end up in non-Native families.

Arizona: Tribal law experts fear effects of Supreme Court on jurisdiction, sovereignty

Court is asked to weigh multiple issues

According to SCOTUS Blog, a site that monitors Supreme Court cases, the high court has been asked to weigh several major issues. Among them:

• Does ICWA exceed Congress' authority to regulate commerce with tribes?

• Does the Indian Child Welfare Act discriminate based on the child's race, which would violate the constitutional guarantee of equal protection?

• And does ICWA violate the “anticommandeering doctrine" of the 10th Amendment, which prohibits federal requirements for states and state officials to adopt or enforce federal law?

The attorneys' arguments seemed to be that Congress' power to regulate tribes, known as plenary power, should be limited.

Attorney Matthew McGill, who represents the Texas couple seeking to adopt a Navajo child, argued that many laws regarding Indian tribes, dating as far back as the formation of the United States, are unconstitutional. Some justices seemed skeptical of that.

Judd Stone, solicitor general of Texas, said administering ICWA cases posed an undue burden on the state. He also said the law violated the anti-commandeering clause.

The Brackeens' attorney also said tribal sovereignty wasn't at risk, just the ability to regulate Indians not on their lands. They also questioned why small children were enrolled in tribes without their consent or knowledge.

Justice Clarence Thomas asked if the federal government has the power to regulate tribal affairs on reservations or related to reservations, if there was a difference between an "Indian not on a reservation, not a part of a tribe, not associated with a tribe?" since those persons are also U.S. citizens.

Thomas was referring to ICWA cases where children were deemed eligible for tribal citizenship but had not yet been put on tribal rolls.

Justice Neil Gorsuch, a noted Indian law expert, also pushed back on several points made by the Brackeens and the Texas state attorneys.

Some justices also tried to make the case that ICWA is at least partially race-based. Ian H. Gershengorn, who was arguing on behalf of several tribes, pushed back on that. ICWA draws distinctions that are political in three different ways, he said.

"It applies only to tribes that the federal government has recognized, it incorporates membership criteria established by sovereign tribes, and it relies on the political decisions of parents to remain tribal members," he said.

Curious questions from justices

At times, the hearing seemed to take a curious turn when conservative justices like Samuel Alito asked about tribal preference.

"Could Congress have required that Indians get preference in receiving the COVID vaccines?" he asked Edwin Kneedler, deputy solicitor general in the U.S. Department of Justice. "Would that be an equal protection violation in your view?" Kneedler struggled to answer the query.

Twitter was abuzz when Alito said tribes don't share a common interest because they were all at war with each other before the arrival of European settlers.

There is nothing more central to self-government than keeping children in their home communities, Gershengorn said. He said Congress has routinely singled out federally recognized tribes for various legislation.

ICWA is not only good for tribes but ICWA is best for children, he argued.

"Congress made the judgment and recognized that separating children from their families and communities is harmful," he said. The average age of tribal children removed from their homes is over 6, Gershengorn said, and those children are also removed from their schools, their friends and their communities.

Pascua Yaqui Attorney General Alfred Urbina said his tribe is strongly invested in both staff and resources to identify and settle child placements quickly, with the majority of children being placed with family.

"The tribe invests between $500,000 and $1 million a year in Arizona ICWA cases," he said. The state bears some of the responsibility for resource expenditures on ICWA cases since it takes so many Native children out of homes, he said.

Urbina said the tribe saves the state money because of their footwork and fast action. "We help the state close ICWA cases faster than normal and Arizona avoids paying out expensive adoption subsidies for children who have to be adopted out," he said. The tribe's commitment to placing kids within the community closes cases earlier, which Urbina said saves the state even more administrative costs.

As to assertions by the Brackeens' attorney that tribal sovereignty should be restricted to tribal lands, Urbina said that about 80% of the 19,000-member Pascua Yaqui tribe lives off-reservation due to a housing shortage on its small tribal land. Many tribes have even less land or even no land, he said.

Urbina said tribal members who transitioned out of foster care within the community were grateful to live with family.

"'Maybe I don't have a pool, but I'm learning my culture and language,'" he said. He recounted some of them telling the tribe, "Even infants and toddlers understand it's better to have access to their families."

Fort, the Michigan State University law professor and creator of the Indian Child Welfare Act Appellate Project, which represents tribes in complex ICWA cases, said there were not many surprises during the hearing.

"The attorneys made very broad arguments, and the justices recognized that," said Fort, who represents some of the tribes in the case.

Several states have enacted their own versions of ICWA, she said, and other states have incorporated portions of it.

"ICWA is the federal minimum standard that Congress thought were needed for Native children and families," she said.

What happens next

Fort said the next steps for tribes, state and the federal government rest on how the Supreme Court decides the case and what language it uses.

"I'm not sure that we really got a lot of insight today on on which way they're leaning," she said. "I think it's still very much up in the air."

The arguments the high court uses in its decision if it decides to overturn ICWA in some way will determine what remedies could be enacted, Fort said.

There's also the question of how the arguments the court uses to overturn ICWA, if it does, would affect Indian Country. Fort said there is a larger question about how it could affect tribal sovereignty, the federal tribal trust relationship or federal powers over tribal affairs.

Debra Krol reports on Indigenous communities at the confluence of climate, culture and commerce in Arizona and the Intermountain West. Reach Krol at debra.krol@azcentral.com. Follow her on Twitter at @debkrol.

Coverage of Indigenous issues at the intersection of climate, culture and commerce is supported by the Catena Foundation.

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This article originally appeared on Arizona Republic: Supreme Court hears case that could threaten Indian Child Welfare act