Victory for Indigenous nations’ sovereignty as Supreme Court upholds Native adoption law
Demonstrators stand outside of the U.S. Supreme Court as justices hear arguments over the Indian Child Welfare Act, Nov. 9, 2022, in Washington. The Supreme Court on Thursday preserved the 1978 Indian Child Welfare Act, which gives preference to Native American families in foster care and adoption proceedings of Native children, rejecting a broad attack from Republican-led states and white families who argued it is based on race. | Mariam Zuhaib / AP

In a surprising decision, the United States Supreme Court ruled in favor of the Indian Child Welfare Act (ICWA), affirming the Native adoption law’s constitutionality. The High Court ruled that the original plaintiffs in the case—the states of Texas, Louisiana and Indiana and a number of individual families—had neither merit nor the standing to prevail in their lawsuit. The decision was by an overwhelming 7-2 majority vote.

The dispute before the Court was Haaland v. Brackeen, a consolidation of three separate cases centered on questions related to the ICWA and Native sovereignty.

The ICWA provides preference to immediate and extended relatives and members of other Native nations in the granting of custody and foster care placement of Native American children. A white couple—Chad and Jennifer Brackeen—had challenged ICWA, asserting it discriminated based on race and was, therefore, unconstitutional. They were backed by the three states. Upholding the ICWA on the opposite side was the federal government and Interior Sec. Deb Haaland, named in the case in her official capacity.

The leaders of the Indigenous nations supporting the ICWA and the federal government included Cherokee Nation Principal Chief Chuck Hoskin, Jr., Morongo Band of Mission Indians Chairman Charles Martin, Oneida Nation Chairman Tehassi Hill, and Quinalt Indian Nation Chairman Guy Capoeman.

The decision is a huge victory for tribal sovereignty. The Court upheld the tribes’ and the federal government’s view that although Native people are a racial classification, the ICWA is not based on race, but rather on their political status as citizens of their respective Indigenous nations.

The existence of federally-recognized Indigenous nations was reaffirmed by the Supreme Court. The United States entered into treaties with Indigenous nations based not on the recognition of Native people as a race within the U.S. but rather as citizens of nations with which the U.S. negotiated. The Native nations were and still are legally sovereign polities. The affirmation of ICWA as the product of nation-to-nation diplomacy is a recognition of the continuing existence of tribal sovereignty.

The ICW was enacted in 1978 with the purpose of correcting, halting, and preventing the wholesale removal of Indigenous children from their families and their placement in white homes. Indigenous nations saw the practice as a national tragedy, a form of genocide recognized by conventions of the United Nations.

At the time of the ICWA’s passage, 35% of all Indigenous children were being taken from their families; such preying on Indigenous children endangered the continued existence of Native nations over time.

In mid-1970s, the U.S. Congress finally and belatedly investigated this ongoing genocide and took action. Its inquiry revealed that many children were removed from loving homes simply because the family was Indigenous and economically disadvantaged.

Child removals had reached epidemic levels. For example, in one state, the adoption rate for Indigenous children was 13 times that of non-Indigenous children. Entire reservations were found to being shorn of their youth.

Many tribes are thus feeling a sense of relief and elation, then, that the Supreme Court elected not to resume the genocide that had been ongoing for decades prior to the passage of ICWA.

However, as many note, the ICWA still needs to be strengthened, as out-of-home placements still occur much more frequently for Native children than for non-Native children. Further, Indigenous children are still four times more likely to be put in foster care in their first court appearance at a child welfare hearing than white children.

Despite the work still to be done, the Supreme Court decision is momentous victory for tribal nations, Indigenous communities, and tribal sovereignty.

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Albert Bender
Albert Bender

Albert Bender is a Cherokee activist, historian, political columnist, and freelance reporter for Native and Non-Native publications. He is currently writing a legal treatise on Native American sovereignty and working on a book on the war crimes committed by the U.S. against the Maya people in the Guatemalan civil war He is a consulting attorney on Indigenous sovereignty, land restoration, and Indian Child Welfare Act (ICWA) issues and a former staff attorney with Legal Services of Eastern Oklahoma (LSEO) in Muskogee, Okla.