US Supreme Court Hears Case on Indian Child Welfare Act (ICWA)UPDATED

“Native American families have an advantage in adopting and fostering Indigenous children. But should they? That is the question the U.S. Supreme Court will have to answer after hearing the case, Haaland v. Brackeen.

he Court is weighing the future rights of Indigenous tribes on the heels of Native American Heritage Month. Over the course of our country’s history, different policies systematically removed Native American kids from their families and communities. As a result, in 1978, the Indian Child Welfare Act was put in place to “protect the best interests of Indian Children.”

But now the law, known as ICWA, is in danger of being overturned because of the lawsuit the Supreme Court heard in November alleges it discriminates based on race.

“It favors all Indian persons over all non-Indian persons in in foster and adoptive care. And I don’t think that can be described as anything other than a racial classification,” said Matthew McGill, a lawyer who is representing the non-Native adoptive families presenting the challenge.

McGill represents the plaintiffs, Chad and Jennifer Brackeen, one of several white foster couples who have had to overcome challenges in adopting Indigenous children they were fostering.

“Our clients opened their hearts and their homes to children in need when, frankly, no one else wanted them,” McGill said.

ICWA says a child’s extended family, tribe and other Indigenous families get first dibs to adopt a Native child. If they do not want the child, then non-Native families have an opportunity to adopt.

Leonard Powell, who is representing the native tribes defending the law, says if tribal kids are removed then tribes will no longer exist.

“ICWA has done a lot of great work, but Indian children continue to be removed from their homes at critically disproportionate rates. So it’s a very important law that is still vital,” said Powell.

Powell said the tribes are also concerned, if ICWA is overturned, then tribes could lose their overall sovereignty.

“If some of the most aggressive theories the challengers argue were adopted by the court, the ramifications could be quite broad for tribes and for any country. More generally, those who even are not Indian, but who live in Indian country or visit Indian country could be affected,” Powell said.

The US has 374 treaties with Native Americans and tribes due to a section of federal law. However, the conservative-leaning Court could side with the plaintiffs and give these decisions back to the states.

A ruling is expected in the spring at the earliest.”

Supreme Court hears case on Native Americans and adoption
[Live 5 News 12/2/22 by Josh Rultenberg]

REFORM Puzzle Piece

Update:“The Supreme Court on Thursday upheld a federal law, intended to rectify past government abuses, that gives preference to the foster care and adoption of Native American children by their relatives and tribes.

In a 7-2 decision, the court left in place the 1978 Indian Child Welfare Act (ICWA), which was passed to remedy what Congress said was a disgraceful history in which hundreds of thousands of Native American children were removed from their homes by adoption agencies and placed with White families or in group settings.
“Congress’s power to legislate with respect to Indians is well established and broad,” even when it impacts family law, an area that is primarily a state responsibility, Justice Amy Coney Barrett wrote for the majority. “It is true that Congress lacks general power over domestic relations,” Barrett added. “But the Constitution does not erect a firewall around family law.”

“Justices Clarence Thomas and Samuel A. Alito Jr. dissented, with Alito writing that the majority “decides one question after another in a way that disserves the rights and interests of these children and their parents, as well as our Constitution’s division of federal and state authority.”
The law was challenged by three non-Indian couples and three states, led by Texas. The plaintiffs contended the law requires state officials to put aside the traditional standard of doing what is best for the child, and relies on racial discrimination in ways the Constitution does not allow. They argued that while Congress has vast power over issues relating to tribes in other areas, it went too far here.

The tribes and their supporters argued that the law is based on political distinctions, not racial ones, and that Congress had decided the law was necessary in part to ensure the tribes had a future. They said the law was meant to rectify a past in which, studies showed, about a third of Native children were removed from their parents for foster care or adoption. Upward of 85 percent of placements were in non-Native homes.

Tribal leaders called the decision a “major victory for Native tribes, children, and the future of our culture and heritage.”
“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,” said a statement from leaders of the Cherokee Nation, Morongo Band of Mission Indians, Oneida Nation and Quinault Indian Nation.
President Biden, whose Justice Department defended the law along with lawyers for several tribes, said in a statement that the court’s decision would retain a “vital protection for tribal sovereignty and Native children” and keep them connected to their communities.
The ruling Thursday did not resolve the broader question of whether the child-welfare law violates equal protection guarantees and unconstitutionally discriminates on the basis of race by placing non-Indian families on unequal footing with Indian families in disputes involving the adoption or fostering of an Indian child.

The challengers raised that issue. But the justices dismissed it on a technicality, saying the equal protection claim — which was directed at federal, rather than state officials — was not properly before the court in this case.
“Enjoining the federal parties would not remedy the alleged injury, because state courts apply the placement preferences, and state agencies carry out the court-ordered placements,” wrote Barrett, who has two adopted children.

But Thursday’s decision may not be the final word. Justice Brett M. Kavanaugh, who joined the majority, called the racial-preference issue “serious” and suggested it should be revisited. He noted that a child or prospective adoptive or foster parent could be denied placement because of race —even if the placement is otherwise determined to be in the child’s best interests.”

“In a high-profile 2013 case involving a child who became known as “Baby Veronica,” the Supreme Court ruled 5-4 that the child welfare act did not require the girl, who had been adopted by a non-Native couple, to be placed in the custody of her birth father, a member of a tribe who had never had custody of the child. That case did not call for the justices to decide the constitutionality of the law.

The court also has been divided in other decisions involving Native American law. In 2020, it sided with tribal leaders in finding that a large portion of land in the eastern part of Oklahoma qualifies as an Indian reservation. Last term, the justices narrowed that decision to say that both the federal government and states have authority to prosecute non-Indians for crimes committed against Indians that occur within reservation boundaries.

The case is Haaland v. Brackeen.”

Native adoptions can give priority to tribal families, Supreme Court rules
[Washington Post 6/15/23 by Ann E. Marimow and Robert Barnes]