The fate of the Indian Child Welfare Act, ICWA, currently rests in the hands of the justices of the Supreme Court of the United States, SCOTUS, as oral arguments begin in Haaland v. Brackeen, the first of four cases to be heard on the issue. The justices’ ruling will determine what the ICWA will look like following the SCOTUS decision on the law’s constitutionality.
The ICWA was enacted in 1978 and provides a preference for placing Native children with Native families, among other provisions that impact Native families across Indian Country. The law came in response to reports that large numbers of Native children were being separated from their families and communities by state welfare officials and private adoption agencies.
According to the National Indian Child Welfare Association (NICWA), research and data show a systematic bias, where abuse has been reported, that American Indian/Alaska Native children are two times more likely to be investigated, two times more likely to have allegations of abuse or neglect substantiated, and four times more likely to be placed in foster care than Caucasian/White children. The enactment of ICWA dictates that ‘active efforts’ must be made to keep or reunite children with their families and communities.
The current lawsuit (Haaland v. Brackeen) has reached the Supreme Court after it was filed in Texas by several adoptive parents claiming that ICWA unfairly discriminated against non-Native people in the adoption process by setting precedence for Indigenous parents over non-Indigenous. Supporters of ICWA law point out that tribal citizenship is not a racial classification but a political/legal status, and overturning the law based on race could take Indigenous rights back to a pre-civil rights era.
A ruling in favor of making ICWA unconstitutional opens the door for challenging the entirety of Indian Law and tribal sovereignty. Sarah Deer, professor at the University of Kansas and chief justice for the Prairie Island Indian Community, said, “Most opposition to the ICWA focuses largely on the flawed assumption that Native people are strictly a racial category, rather than citizens of independent sovereign governments.”
An ICT story in November 2019 reported that opposition to the ICWA has united a disparate group of organizations and interests that appear to be intent on gaining access to Indian Country’s land and resources, including Native children – with many people and organizations forwarding Federalist philosophies to further an agenda favoring states rights over federal policies.
A complex, 352-page ruling in April 2021 generally upheld Congress’ right to enact the ICWA. It ruled that the legal definition of “Indian child” does not operate based on race and does not violate Article 1 of the 14th Amendment regarding equal protection.
The above ruling, however, did find the ICWA unconstitutional based on claims that the act violates the anti-commandeering doctrine included in the 10th Amendment. According to this, the federal government cannot make states adopt or enforce federal law, including the ICWA. This ruling means that the federal government cannot require state agencies to give notice to tribes, require qualified witnesses in adoption cases, or require states to keep records on Indian child welfare cases. Many legal experts attribute claims that the ICWA violates the anti-commandeering doctrine to the rise of conservative groups and politics supporting state rights over federal authority.
With the Supreme Court’s recent rulings overturning abortion rights, expanding gun rights, blurring the lines of the separation of church and state, and limiting the authority of the Environmental Protection Agency, many Supreme Court watchers are concerned about the impact the ultra-conservative majority amongst the justices could have on the ICWA. This concern is supported by a September 2022 Gallup poll showing that 42% of Americans think the Supreme Court is too conservative. A decision finding the ICWA unconstitutional based on Article 1 of the Constitution, in which Congress is granted the power to regulate commerce with Indian tribes, could be catastrophic to Indian Law. Decades of decisions made by Congress regarding Indian Law could be thrown into the spotlight, leaving room for every decision to be placed under the microscope – or even overturned.