In a 7-2 decision, the U.S. Supreme Court upheld a federal statute that forces states to place Native American children with Native families, even if it’s not in the child’s best interest.
The Court rejected several families’ challenge to the 1978 Indian Child Welfare Act (ICWA), which was created to maintain Native American culture by prioritizing Native families in the adoption of Native children.
The “issues are complicated” Justice Amy Coney Barrett wrote for the majority in Haaland v. Brackeen, but the “bottom line is that we reject all of petitioners’ challenges to the statute.”
Justice Barrett was joined in the majority by the Court’s three Democrat-appointed justices, along with Chief Justice John Roberts, Justice Neil Gorsuch, and Justice Brett Kavanaugh. Justices Clarence Thomas and Samuel Alito dissented.
However, the law prioritizes placing the child in a Native family even if it is not in the child’s best interest and if the Native family is not of the same tribe. The law gives tribal leaders the ability to strip children from non-Native foster families and even to supersede the wishes of the child’s biological parents.
For instance, under the law, a Native child in Minnesota was ripped from a loving non-Native family who wanted to adopt her and given to her grandmother, who had lost her foster license due to a criminal conviction.
The lead plaintiffs in the case, Chad and Jennifer Brackeen, fostered a 10-month-old child and sought to adopt him after a year, with his parents’ support. However, because his parents were members of the Navajo and Cherokee tribes, and both those tribes opposed the adoption, the child was ordered to be removed from the family and placed in New Mexico under the ICWA.
Several families challenged the law on a few main points. First, they argued that the ICWA was unconstitutional under the 10th Amendment because it violated states’ rights to regulate family matters. Second, they argued that the law creates race classifications and makes race-based decisions, which are unconstitutional under the 14th Amendment.
The Court rejected the federalism claim but did not decide the equal protection claim, leaving it for lower courts to decide.
Barrett argued that because the ICWA applies to both private and public parties equally, the states have no claim that the federal government targeted their rights. She also argued that the federal government has supremacy and that it is normal for state laws to be superseded by federal law.
Justice Thomas wrote a dissent, arguing that the ICWA unconstitutionally encroached on states’ police powers and that the Indian Commerce Clause does not apply to children. Thomas accused the Court of using “loose language” and that the Court’s broad definition of the clause had no basis in the Constitutional text. He also pointed out how many of the children affected would have never stepped foot on a reservation.
Justice Alito’s dissent attacked the majority opinion on its consequences and argued the Court “loses sight” of what is important in the case — the best interests of the child. Alito walked through the specific cases, showing how under the ICWA, the children would be ripped from loving non-Indian families despite the harms that would occur by doing so — simply because the tribe’s government desired it.
Justice Kavanaugh wrote a concurring opinion that emphasized the equal protection claim was not addressed, stating the issue is “serious” and challenges “bedrock equal protection principles.”
“Under the Act, a child in foster care or adoption proceedings may in some cases be denied a particular placement because of the child’s race — even if the placement is otherwise determined to be in the child’s best interests,” Kavanaugh wrote. He went on to state the same for prospective foster and adoptive parents — that they could be denied because of their race.
Justice Gorsuch wrote a concurring opinion, joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, that emphasized the horrific treatment of Native Americans throughout American history and the resulting importance of the ICWA.
The decision was met with praise from the Biden Administration and tribal sovereignty advocates. “Our Nation’s painful history looms large over today’s decision. In the not-so-distant past, Native children were stolen from the arms of the people who loved them,” Biden said in a statement.
The Cherokee Nation, Morongo Band of Mission Indians, Oneida Nation, and Quinault Indian Nation said in a joint statement, “We hope this decision will lay to rest the political attacks aimed at diminishing tribal sovereignty and creating instability throughout Indian law that have persisted for too long.”
“We are glad to see the Supreme Court recognized the important benefits of ICWA and allowed the law to stand,” the Choctaw Nation said.
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