Supreme Court Hears Case on the Indian Child Welfare Act

Olivia Allery, news editor

Photo of panoramic view of the west side of the United States Supreme Court Building in Washington D.C. taken on Oct. 10, 2011 by Joe Ravi obtained from Wikimedia Commons

On Nov. 9, 2022, the Supreme Court started hearing the case of Haaland v. Brackeen, which will determine the constitutionality of the Indian Child Welfare Act (ICWA). ICWA is a social policy that prevents the unlawful separation of Native families at the hands of Child Protective Services. It allows for tribal communities to have a say in the child welfare placements of Native children. This policy was enacted in the 1970s when rates of children being separated from their families and tribal communities were astonishingly high. And many children were being sent to residential schools or placed with white families as a means of assimilation. If not upheld, this case could be a serious attack on tribal sovereignty. 

The plaintiffs against ICWA are three white adoptive couples, all of whom fostered and tried to adopt Native children, as well as the state of Texas. Main arguments made by the plaintiffs are that the act discriminates based on race and favors Native tribes over prospective adoptive families. Defendants of ICWA — which include the Department of the Interior, five tribes, hundreds more tribal nations, 23 different states and numerous Indigenous and child welfare agencies giving amicus briefs in support — argue that the act is constitutional and protects and preserves Native families and culture. The defense also asserts that ICWA is not racially discriminatory and argues that American Indian tribes are political classes. 

The court hearing started with oral arguments made by Matthew McGill, the attorney for the three plaintiff couples bringing up arguments against Congress’s power of authority when regulating tribal relationships with federal and state governments. These arguments were brought up frequently throughout the hearing, noting Congress’s power is only limited to commerce and trade issues. McGill also argued that Congress could not force state child welfare agencies to adhere to ICWA’s provisions and that states, like Texas, could simply exclude Native children from its foster care system. This argument was struck down by the defense stating that it would bring up equal protection challenges for Native children if they were to be excluded.

The court hearing lasted three hours, and while arguments were going on inside, a small rally of ICWA supporters gathered outside on the Supreme Court steps to express the importance of keeping ICWA enacted. Supporters from five different tribal nations, organizations and families showed up and spoke out, stating that ICWA was integral to keeping tribal rights and sovereignty alive. National Congress of American Indian President and Quinault Tribal Vice President Fawn Sharp spoke on the steps in a quote from Native News Online: “Three hours of agonizing arguments and they do not understand the basic concept that we have inherent sovereignty and rights to the future of every single Native child born into this generation.” 
A decision will not be reached on the case until spring of 2023, but many are optimistic that the court will rule in favor of keeping ICWA in place. It will be interesting to see how the outcome shapes out, as parts of ICWA have already been challenged, struck down and appealed again.