Supreme Court upholds Indian Child Welfare Act, a big win for Indian Country

Tribal Nations across the country are breathing a sigh of relief after the U.S. Supreme Court handed down a major decision Thursday that upholds tribal sovereignty and protects Indigenous children. 

In a 7-2 decision, the U.S. Supreme Court overturned a Texas federal court’s decision that the Indian Child Welfare Act was unconstitutional. 

Justice Amy Coney Barrett authored the court’s opinion, stating that the case brought before the court involved a birth mother, foster and adoptive parents, and the state of Texas challenging ICWA on multiple constitutional grounds.

“They argue that it exceeds federal authority, infringes state sovereignty, and discriminates on the basis of race,” Coney Barrett wrote. “But the bottom line is that we reject all of petitioners’ challenges to the statute, some on the merits and others for lack of standing.” 

The Haaland v. Brackeen case arose from three separate child custody proceedings overseen by the Indian Child Welfare Act.

ICWA is a federal statute that aims to keep Indigenous children connected to Indigenous families. It oversees state court adoption and fosters care proceedings involving Indigenous children. In doing so, ICWA requires the placement of Indigenous children with a preference for Indigenous families or institutions from tribal nations.

Secretary of Interior Deb Haaland called the court’s decision “a welcome affirmation across Indian Country of what presidents and congressional majorities on both sides of the aisle have recognized for the past four decades.”

Haaland said that for nearly two centuries, federal policies have promoted the forced removal of Indigenous children from their families and communities through boarding schools, foster care and adoption.

“Congress passed the Indian Child Welfare Act in 1978 to put an end to those policies,” she stated. “The Act ensured that the United States’ new policy would be to meet its legal and moral obligation to protect Indian children and families and safeguard the future of Indian Tribes.”

ICWA was enacted in 1978 in response to the large number of Indigenous children being separated from their homes by state child welfare and private adoption agencies, according to the National Indian Child Welfare Association. 

Before ICWA became law, the National Indian Child Welfare Association said that up to 35% of all Indigenous children had been removed from their homes, and 85% were placed with non-Indigenous families.

Through ICWA, there are now federal requirements that apply to state child custody proceedings involving an Indigenous child who is a member of or eligible for membership in a federally recognized tribe. This includes placing the Indigenous child with Indigenous families or tribal institutions.

Tribal leaders from the four tribes at the heart of the case, Cherokee Nation Principal Chief Chuck Hoskin Jr., Morongo Band of Mission Indians Chairman Charles Martin, Oneida Nation Chairman Tehassi Hill and Quinault Indian Nation President Guy Capoeman, issued a statement on Thursday’s decision. 

“Today’s decision is a major victory for Native tribes, children, and the future of our culture and heritage,” the tribal leaders stated. “It is also a broad affirmation of the rule of law and of the basic constitutional principles surrounding relationships between Congress and tribal nations.”

The tribal leader added that they hope this case will “lay to rest the political attacks aimed at diminishing tribal sovereignty and creating instability throughout Indian law that have persisted for too long.”

President Joe Biden applauded the Supreme Court’s decision on Thursday, stating that the initial lawsuit sought to undermine the Indian Child Welfare Act.

“The Indian Child Welfare Act was passed to protect the future of Tribal Nations and promote the best interests of Native children, and it does just that,” Biden said. “The touchstone law respects tribal sovereignty and protects Native children by helping Native families stay together and, whenever possible, keeping children with their extended families or community who already know them, love them, and can help them understand who they are as Native people and citizens of their Tribal Nations.”

The Protect ICWA Campaign, established by four national Native organizations, the National Indian Child Welfare Association, the National Congress of American Indians, the Association on American Indian Affairs and the Native American Rights Fund, commended the Supreme Court decision, stating that ICWA is widely regarded as “the gold standard” of child welfare. 

“ICWA is crucial for the safety and well-being of Native children and families and the future of Native peoples and Tribal Nations,” the Protect ICWA Campaign leaders stated. “The positive impact of today’s decision will be felt across generations.”

Local and state tribal leaders commended the Supreme Court’s decision, many applauding it’s upholding of tribal sovereignty and protection of Indigenous children.

“The Gila River Indian Community will always fight to protect Indian children and Indian families,” said Gila River Indian Community Gov. Stephen Roe Lewis. “We applaud the Supreme Court on having done the right thing.” 

Lewis said the court’s 7-2 decision resoundingly rejected constant attacks on tribal sovereignty.

“Indian County will remain vigilant and will respond aggressively to any future efforts to undermine our sovereignty or to interfere with our sovereign right to act in the best interests of our children,” Lewis added.

For the Pascua Yaqui Tribe, Chairman Peter Yucupicio said the tribe has been operating in the ICWA program since 1980, and the tribe is directly involved with state ICWA cases. 

“We have clear evidence, and we have demonstrated that ICWA helps sustain our tribe, our families, and our tribal government,” Yucupicio said. “We assist and work in partnership with the state to reunify and place our children with tribal families because it is in the best interest of our children.”

Yucupicio added that the tribe relies on ICWA because it is considered the “gold standard” of child welfare, so it should be adopted in all state dependency cases. 

Yucupicio said it’s important that state and tribal leaders continue to work to affirm and codify the provisions of ICWA in Arizona law. 

He stated that Arizona should start a task force to provide input and shape legislation that will protect tribal nations and Indigenous children.

Gov. Katie Hobbs tweeted Thursday, celebrating the supreme court decision. 

“I celebrate with Tribes and Nations today on the SCOTUS ruling, and reaffirm my commitment to partner with Tribes to ensure the well-being of Indigenous children in the child welfare system and to respect the sovereignty of Tribal Nations,” she wrote in the tweet.

Navajo Nation tribal leaders appreciated the supreme court decision and urged continued support for ICWA.

“The Indian Child Welfare Act is a vital tool for protecting Navajo families and communities, and we are grateful that the Supreme Court has recognized its importance,” Navajo Nation President Buu Nygren said.

Navajo Nation Council Delegate Amber Kanazbah Crotty, a longtime advocate for ICWA, expressed her appreciation for the ruling but said it is just one step in the right direction.

“The United States Supreme Court upholding the Indian child welfare act as constitutional is just one small step in the right direction to protect our Navajo children,” Crotty said. “As a nation, we must do more to prevent our children from entering the child welfare system and we must continue to fight for their futures.”

***UPDATE: This story has been updated with reactions from local and state tribal leaders.