SCOTUS ruling on ICWA a victory for welfare of Native American children

Native people in New Mexico and legal experts applauded the U.S. Supreme Court’s decision on Thursday leaving intact the civil rights law called the Indian Child Welfare Act (ICWA), which they see as a victory for the welfare of Native American children by bolstering their connections to tribes and their land.

The case centers on a child whose biological parents are Navajo and Cherokee but were placed in a foster home with a white couple in Texas. New Mexico’s neighboring state to the east joined the couple in mounting a broader attack on ICWA which had the potential to upend federal Indian law in the United States, experts say.

The Supreme Court’s 7-2 decision on Brackeen v. Haaland was written by conservative justice Amy Coney Barrett. 

Justices Clarence Thomas and Samuel Alito dissented.

The justices in the majority “emphatically” said that it was well within the power of Congress to enact ICWA, said Bertram Hirsch, an attorney with the Association on American Indian Affairs.  

In the 1970s he helped draft what would become ICWA.

If the plaintiffs’ argument had prevailed, supporters of ICWA were fearful that it would have opened the door to challenging many other federal Indian laws on the same reasoning.

But the court today “drove a stake through that argument,” Hirsch said. “That’s a pretty permanent stake,” he said by telephone from his home in New York. “When you have seven justices not buying into that argument, and only Alito and Thomas bought into it, that argument is dead forever — or at least for the rest of my lifetime anyway.”

The decision will bolster ICWA’s ability to endure any constitutional challenges in the future, said Vanessa Racehorse, a professor at the Law and Indigenous Peoples Program at the University of New Mexico School of Law.

“This opinion affirms the strength of the Indian Child Welfare Act and its protections for Indian children and their families,” said Racehorse, a member of the Shoshone-Bannock Tribes, and a descendant of the Cherokee Nation and Shoshone-Paiute Tribes.

“This litigation was part of a strategic effort to undermine cornerstone principles in Indian law, including principles regarding tribes’ political status and unique relationship with the federal government, and the Court has made it clear those arguments are not grounded in the law,” she said.

Read the full decision here:

Long history of unwarranted removal of Native children

Members of the Coalition to Stop Violence Against Native Women on Thursday morning reflected on the decision and asked themselves: what would their ancestors — who for hundreds of years have been fighting the removal of their children — say to them right now?

Angel Charley, executive director of the Coalition, said she felt gratitude for all of the work that was put into educating people who don’t know a lot about Native communities and didn’t understand their unique political status as Indigenous people in the founding of the United States.

“If we were to undermine the political status of Indigenous people, we are ultimately undermining the establishment of the United States of America, and if you undo that, you open a Pandora’s box,” Charley (Laguna) said.

Hirsch pointed out that Congress made it clear in the text of the law itself that disproportionate numbers of Native children were being removed from their families for placement in non-Native families and institutions, without due process or equal protection.

In Brackeen, the U.S. government and the tribes argued Native identity is inherently political, and not racial, because Native nations are sovereign entities.

That political status, she said, has led Charley to understand the importance of protecting sovereignty, language, culture and land.

She said growing up with Indigenous communities and cultures gives children a way of being. It can form an understanding and provide a sense of belonging by caring for the Earth, animals, plants and everyone.

“By removing our children, by removing people from community, by removing people from land, it’s an attempt to remove that connection to all of the extensions of ourselves,” Charley said.

Case could have undermined political nature of Native identity

Hirsch said the Supreme Court did not reach a major issue in the case, which was whether the placement preferences for Native children under ICWA are racially discriminatory, and therefore unconstitutional.

The justices said the parties who raised the issue didn’t have the legal right to raise it because they weren’t able to show that they were injured by it.

The state of Texas and the Brackeens were struggling to tell the court how they had standing to bring those arguments, Racehorse said.

ICWA aims to keep Native children connected to Native families by requiring courts to, by default, give preference first to someone in the child’s extended family, then other members of the child’s tribe, and then other Native families.

Before ICWA, the discrimination was against Native American families who were never considered for placement.

More than 95% of all Native children at that time were being placed with non-Native families, Hirsch said. 

The basic thinking all across the non-Native legal profession in America and non-Native social services departments was that reservations were places to get children away from, and Native families were homes to get them away from, he said.

ICWA stripped state agencies from the decision making, not entirely but to the greatest extent that one could, Hirsch said. The law recognizes tribes’ sovereign authority over Native children as paramount over any interest the states might have in the same children.

“The racial discrimination business about the placement preferences being racially discriminatory, that flips on its head the arguments that we were making back in the 1970s,” Hirsch said. “It was not against the tiny, tiny, little bit of non-Indians who were desiring to adopt an Indian kid.”

If that argument someday prevails, that the Indian Child Welfare Act is racially motivated and not based on the political relationship between tribes in the United States, that could open the door to saying that other laws passed specifically to protect tribes and Native Americans are also racially motivated, Hirsch said.

“But we’re years away from that,” he said.

And even if a ruling that the preferences in ICWA are race-based were to ever happen, he said, it might very well never be applicable to any other law.

Connections to oil and gas

The high-powered international law firm Gibson, Dunn & Crutcher represented the Brackeens for free. It has also represented Chevron, various major casino interests and other interests that in many cases are antithetical to some tribal ones.

The case was never just about Native children being removed, Charley said. It was ultimately an attempt to disrupt the relationship between Indigenous people and the land, to prime it for extraction and development.

New Mexico is one of the leading oil and gas producing states in the country, Charley said.

Charley said those attorneys’ stake in the argument around Native children’s welfare is “if you find a mechanism to remove Indian people from the community which is ultimately from their land, you thereby create a system where they don’t have access to the land and the community.”

And the stake of the oil and gas industry, she said, is to “perpetuate extractive industries’ practices, and to build systems to remove Indigenous people from their land.”

“These tactics will continue to come,” Charley said. “We need to remain vigilant as oil and gas continues to attack our communities, attack our sovereignty.”

States codifying protections found in ICWA

The Supreme Court also found, Hirsch said, that the federal government can require states to act under their own laws in a way that conforms to a federal mandate, primarily having to do with children and families who are going to or have been placed in preventive and rehabilitative services.

Even though Brackeen is a resounding victory for the strength of ICWA, there is still great importance in states implementing their own laws that can go beyond its minimum standards, Racehorse said.

Most state laws, regulations and agreements with tribes were already put in place by one state or another prior to Brackeen being litigated, Hirsch said. Oklahoma was the first state to pass a state law based on ICWA in the 1970s, Hirsch said.

As a direct result of Brackeen, anticipating a different outcome and hoping to mitigate the consequences, Wyoming, North Dakota, and Montana have adopted similar laws. Maine is expected to adopt one next week, Hirsch said.

“There’s a lot of good law out there,” he said.

As Brackeen was making its way through the courts, the Coalition to Stop Violence Against Native Women was working in 2020 alongside Bold Futures New Mexico, the New Mexico ICWA Consortium, and the CYFD Office of Tribal Affairs to draft a state law modeled after ICWA, called the Indian Family Protection Act.

New Mexico in 2022 enacted IFPA with input from tribal child welfare workers and tribal leaders “in order to better fit our needs as tribes and as tribal communities,” said Ryder Jiron (Isleta), policy and communications coordinator at the Coalition.

The platinum standard of the Indian Child Welfare Act

For example, New Mexico’s IFPA requires the state to give tribes notice within 24 hours of initiating an investigation that involves a Native child.

In contrast, ICWA requires notice after removal has occurred, when a court knows or has reason to know that the child involved in an involuntary foster care placement or termination of parental rights proceedings is a Native child, Racehorse said.

This notice requirement is a crucial piece to a tribe’s involvement in a case as early as possible, and improper notice is one of the most frequently litigated issues in ICWA cases, she said.

IFPA also has provisions about responsiveness training and cultural compacts that outline how Native children can continue to engage with their culture if they are not placed for adoption or guardianship with a member of their tribe.

Both of these go beyond ICWA’s requirements and appear tailored to promote education around the law, Racehorse said, with the aim of increasing compliance, and strengthening Native children’s connection to their culture.

“What went into the Indian Family Protection Act was love, and care, and intention for generations to come,” Charley said.