SUPREME COURT PROTECTS ADOPTION LAWS AIMED AT KEEPING NATIVE AMERICAN CHILDREN WITH THEIR TRIBES

 By Miriam Raftery

June 15, 2023 (Washington D.C.) – By a 7-2 vote, the U.S. Supreme Court voted this morning to uphold the 1978 Indian Child Welfare Act (ICWA) provisions which require that Native Americans be given preference to foster or adopt Native  American children. 

The law was enacted to keep children in their Tribal community and protect tribal sovereignty, in response to many decades of Indian children being taken away from their families by both state and federal authorities and given to white families to adopt, or winding up in the foster care system, losing cultural identity. The law gives priority to adoption by others in the Tribal community, if parents cannot care for their own children.

“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 the law,” reads a statement issued by  leaders of four tribes involved in the case – the Cherokee Nation, the Morongo Band of Mission Indians in Southern California, the Oneida Nation, and the Quinault Indian Nation.  “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.”

U.S. Secretary of the Interior Deb Haaland, the first Native American to head the federal agency that oversees the Bureau of Indian Affairs, posted on Twitter praising the decision as 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.”  She recalls two centuries of Indian children removed from their families through boarding schools, foster care and adoption. “These policies were a targeted attack on the existence of Tribes,and they inflicted trauma on children andcommuniteis that peoplecontinue to feel today,”she stated, adding that the ICWA was passed to “safeguard the future of Indian Tribes.”

Before the ICWA was enacted, 25 to 35 percent of all American Indian and Alaskan Native children were removed from their homes into the child welfare or adoption systems and 85% were placed outside their communities, even when there were fit and willing relatives, according to Trish Martinez, Native Liaison to the San Diego Regional Human Trafficking/CSEC Advisory Council. San Diego County is home to more Native American tribes, 19, than any other county in the U.S.

Martinez, speaking at a 2019 conference at Sycuan in San Diego’s East County, said, “Here in San Diego, there were 500 American  Indian and Alaskan Native children in the system. Now we only have four in our county’s child welfare system.”  She added that indigenous children in the child welfare system have a 50 to 90 percent higher risk of victimization and trafficking than any other racial or ethic group.

The Supreme Court case, Haaland v.Brackeen, was filed by a white evangelical Christian couple seeking to adopt a Native American boy as well as his half-sister, who already lives with them. The states of Texas, Indiana and Louisiana were also parties in the case seeking to end ICWA provisions requiring that preference be given to Native American families to adopt tribal children.

Arguments to strike down the law including claims that it discriminated on the basis of race in violation of the U.S. Constitution, that it did not protect the best interests of children, and that states, not Congress, have the power to regular Indian child welfare laws.

Conservative Justice Amy Coney Barrett wrote the majority decision, stating,  “Congress’s power to legislate with respect to Indians is well established and broad,” also finding no Constitutional provision that would bar Congress from family law regulations. 

The high court found that ICWA does not discriminate on the basis of race nor impose an undue burden on states. However, the Supreme Court justices did not rule on the merits of an equal protection challenge, finding that the couple and the states that filed challenges lacked standing to raise the issue.

Joining Coney-Barrett  in the majority were Chief Justice John Roberts as well as liberal justices SoniaSotomayor, Elena Kagan,and Ketanji Brown Jackson along with conservatives Neil Gorsuch and Brett Kavanaugh.

Justice Gorsuch wrote his own concurring opinion, stating, ”Our Constitution reserves for the Tribes a place – an enduring place – in the structure of American life,” adding that this ”promises them sovereignty for as long as they wish to keep it.” Gorsuch further stated that Congress acted lawfully when it enacted the ICWA “to secure the right of Indian parents to raise their families as they please; the right of Indian children to grow in their culture; and the right of Indian communities to resist fading into the twilight of history.”

Conservative justices Samuel Alito and Clarence Thomas dissented

In his dissent, Justice Thomas voiced his opinion that in passing the  ICWA,  Congress “clearly intruded upon along standng domain of exclusive state powers…”

Justice Alito agreed with Thomas that decisions regarding child custody are “core state functions” but also voiced concerned over the best interest of a child who has been temporarily placed with a prospective family and who has  “developed a strong bond with the family…”

Briefs in support of protecting the ICWA were submitted on behalf of nearly 500 tribes, over 60  Native American organizations, 23 states,  83 Congressional members,and27 child welfare and adoption organizations, Indian Country reports. The U.S.  Justice Department argued in favor of preserving the law before the high court.

.President Joe Biden praised the high court’s ruling to keep in place “a vital protection for tribal sovereignty and Native children.”  He recalled our nation’s “painful history, noting, “in the not-so-distant past, Native children were stolen from the arms of the people who loved them.  They were sent to boarding schools or to be raised by non-Indian families – all with the aim of erasing who they are as Native people and tribal citizens,” actions that “threatened the very survival of Tribal Nations.”

The National Indian Child Welfare Association, which calls the ICWA the “gold standard of child welfare,” also issued a statement after the Supreme Court ruling, stating, “The positive impact of today’s decision will be felt across generations.”