The Indian Child Welfare Act upheld!

On June 15, the Supreme Court of the United States voted to uphold the Indian Child Welfare Act (ICWA) in Brackeen v. Haaland, a Supreme Court case that sought to declare ICWA unconstitutional. Had SCOTUS failed to uphold ICWA, the results would have been disastrous for Native nations and communities.

Protesters outside the U.S. Supreme Court during arguments over Brackeen v. Haaland, Nov. 9, 2022. Credit: Darren Thompson

Before ICWA was passed in 1978, 35 percent of all Native children were removed from their families. Of those children, 85 percent ended up with non-Native families, even in cases where relatives had been ready and willing to adopt them.

ICWA provides vital protections against U.S. mass-kidnapping practices, which the United Nations unequivocally defines as genocide. ICWA also recognizes Native nations’ jurisdiction over foster care and adoption proceedings for children with tribal citizenship and provides Indigenous families with a degree of safety from the settler-colonial human-trafficking regime that has kidnapped Indigenous children for over two centuries.

Landmark victory for tribal sovereignty

The Court’s 7-2 ruling in Brackeen v. Haaland in favor of ICWA is a landmark victory for tribal sovereignty. Cherokee Nation Chief Chuck Hoskins wrote on Twitter: “Today’s decision is a major victory for Native tribes, children and the future of our 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.” At least 486 tribal nations and 59 Indigenous organizations submitted amicus briefs in support of ICWA.

The plaintiffs in Brackeen v. Haaland – Chad and Jennifer Brackeen, a white couple trying to “adopt” a Navajo child against the wishes of the Navajo Nation – acted as puppets in the campaign to expand the U.S. genocidal regime by destroying tribal sovereignty altogether.

Gibson Dunn, the corporate law firm that represented the Brackeens, has on its client list many of the largest fossil fuel and gaming companies – including Chevron, Shell, and MGM Resorts, as well as Enbridge and Energy Transfer Partners, the corporations that co-own the Dakota Access Pipeline (DAPL).

Gaming and fossil fuel interests have long sought to seize Native lands for further exploitation and enclosure. The legal kidnapping of Native children – which would sever their ties to their cultures, communities, tribes and lands – would further this campaign by ensuring the destruction of tribal nations.

In the majority opinion, Justice Amy Coney Barrett concluded that ICWA did not violate the anti-commandeering doctrine (essentially, the idea that the federal government cannot force states to use their political authority to enforce federal laws) because ICWA applied equally to state and private parties and fell within the boundaries of the federal supremacy clause.

Barrett ruled that ICWA did not exceed the boundaries of the Indian commerce clause because “commerce” with Indian tribes has always been interpreted broadly to include virtually any interaction between non-Indians and Indians, and has not historically been interpreted as being limited to purely economic activities.

Although the Brackeens had also challenged ICWA on Equal Protection grounds, the Court declined to address those concerns due to a lack of standing since a federal agency, the Department of the Interior (DOI), was being sued rather than a state court or state agency, the governmental bodies responsible for carrying out ICWA. In a concurring opinion, Justice Brett Kavanaugh suggested that he would be open to considering another equal protection challenge brought against a proper party, but none of the other justices signed on to his opinion.

Surprising decisions by conservative judges

In another concurring opinion, Justice Neil Gorsuch – a conservative justice who nevertheless is perhaps the most stringent and consistent defender of tribal sovereignty in the Supreme Court’s history – discussed the purpose of ICWA at great length.  He wrote that it was passed “as a direct response to the mass removal of Indian children from their families during the 1950s, 1960s, and 1970s by state officials and private parties,” with that mass removal being “the latest iteration of a much older policy of removing Indian children from their families” that had begun in the late 1870s with the establishment of Indian boarding schools designed to assimilate Native children into mainstream American culture.

More interestingly, however, Justice Gorsuch wrote that the doctrine of plenary power, the idea that the federal government possessed virtually total authority over Indian tribes and Indian affairs, was unconstitutional because it undermined the “respect for Indian sovereignty [the Constitution] entails.” And it was the result of the Supreme Court abandoning the original conception of the tribal/federal relationship, one in which the federal government possessed broad but not plenary powers regarding Indian country (mainly limited to interactions between non-Indians and Indians), and one where the inherent sovereignty of Indian tribes was acknowledged and respected.

Finally, in two dissenting opinions, Justices Samuel Alito and Clarence Thomas rejected the notion that the Constitution gave the federal government the authority to regulate child welfare, a field they argued is traditionally reserved for state governments. “Whatever authority Congress possesses in the area of Indian affairs, it does not have the power to sacrifice the best interests of vulnerable children to promote the interests of tribes in maintaining membership,” Alito wrote.

As he often puts forth in Indian law cases, Justice Thomas’ opinion urged a radical rethinking of the foundational principles of Indian law, writing that he doubted that the Commerce Clause granted Congress the power to pass a law like ICWA, and suggesting that states possessed greater power over Indian country than the rest of the Court was willing to acknowledge. As is typical of Thomas’ Indian law opinions, he dissented alone.

While this is a crucial win for Native families and tribal sovereignty, Indigenous nations need to be in a position where they are not subject to the whims of the federal government. States also need to stop disproportionately taking Native children from their families and putting them in foster care.

Even with ICWA’s crucial protections, Indigenous children remain at disproportionate risk of family separation, with 15 percent of Native children entering the foster system, compared with 5 percent of white children. As part of reparations to Native nations, governments and institutions should be providing more support and must unequivocally acknowledge and safeguard Tribal Sovereignty, so that Native families can thrive as best they can under settler-colonial occupation.

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