With contributions from Erin Dougherty Lynch.

Earlier this summer, the United States Supreme Court issued its decision in Haaland v. Brackeen, in which it affirmed the constitutionality of the Indian Child Welfare Act (ICWA).  Congress passed ICWA in 1978 to address the mass removal of Indian children from their families, communities, and Tribes.  In Brackeen, the constitutionality of ICWA was challenged by a small coalition of anti-Tribal interests, groups that seek to limit the powers of the federal government, and a handful of interests that financially benefit from the adoption of Indian children.

The Court’s 7-2 decision upholding ICWA’s protections in their entirety was a resounding victory for Indian children, Indian families, Tribal Nations, and best practices in child welfare.  The Court’s opinion and the briefing in the case are a wealth of content for those who seek to better understand the history and landscape of how Tribal citizen children interact with state child welfare programs.  While there is much to celebrate with this victory, now is the time to redouble efforts to improve ICWA compliance, raise the floor set by ICWA, and support tribal child welfare programs.

Though every Supreme Court case is important, Haaland v. Brackeen was notable for several reasons.  First, the federal courts rarely hear cases related to child welfare; child welfare cases most often take place in state and tribal courts.  Indeed, although Congress passed ICWA nearly 45 years ago, Brackeen was only the third ICWA case to go before the Supreme Court.  In addition, the case was unique for the number of constitutional doctrines at issue, each with varying subparts.  Broadly, those who were challenging ICWA argued that it was unconstitutional because: 

  • Enacting ICWA did not fall within Congress’s enumerated powers in Article I of the Constitution.
  • ICWA impermissibly “commandeers” states and thus violates the Tenth Amendment.  
  • ICWA, or a part of ICWA, is a race-based classification that violates equal protection rights. 
  • ICWA, in part, violates the non-delegation doctrine.

These arguments had the potential to upend the relationship between the federal government and Tribal Nations, greatly restrict Congress’s powers, and disrupt the broader field of child welfare.   The Court, however, rejected all of the Petitioners’ challenges to the law—some on the merits and others for lack of standing. Justice Barrett wrote the majority opinion and was joined by Chief Justice Roberts and Justices Sotomayor, Kagan, Gorsuch, Kavanaugh, and Jackson.  

Though much of the Court’s opinion and the briefing focus on the constitutional doctrines at issue, there are several key pieces of writing that are particularly relevant for those whose work focuses on children, families, child welfare policy, and broader issues of equity.

The concurring opinion from Justice Gorsuch (that was signed, in part, by Justices Sotomayor and Jackson) is a must read for anyone who works in child welfare or who seeks to better understand the relationship between the federal government and Tribal Nations. Justice Gorsuch’s concurrence contextualizes ICWA as a law specifically designed to ameliorate the long history of the forced removal of Indian children from their families and communities through widespread federal and state policies aimed at weakening tribal governments and assimilating generations of Native Peoples into the broader American society.  

The concurrence begins by tracing federal policies that resulted in the widespread removal of Indian children from their families, first to Indian boarding schools where students faced “[r]ampant physical, sexual, and emotional abuse; disease; malnourishment; overcrowding; and lack of health care,” and later, by incentivizing state-facilitated family separations that were intended to encourage private adoptions.  As Justice Gorsuch notes, the legacy of these practices remains embedded within modern state welfare apparatuses, and well into the late 20th Century had led to a crisis in which “an estimated 25 to 35 percent of all Indian Children had been separated from their families and placed in adoptive homes, foster care, or institutions.”  

Justice Gorsuch likewise directly describes the inherent bias that often informs child welfare decisions, noting that Indian children have been disproportionately placed with non-Indian families by state and private adoption organizations that “routinely penalize[] Indian parents for conditions of ‘poverty, poor housing, lack of modern plumbing and overcrowding[,]’ and the persistent and destructive belief by non-Native child welfare workers ‘that an Indian reservation is an unsuitable environment for a child.”  As Justice Gorsuch points out, the mass removal of Indian children had “often-disastrous consequences,” causing “severe distress” that “interfere[d] with [Indian children’s] physical, mental, and social growth and development[,]” and exposed children to higher rates of “physical, sexual, [and] emotional abuse in foster and adoptive homes.” 

Though many who have followed this case likely already know this history, Justice Gorsuch’s concurrence is significant for at least two reasons.  First, Tribal Nations, legal experts, and historians filed briefs before the Court describing this history and its ongoing harms, and Justice Gorsuch has now put into the Supreme Court’s own body of work a detailed recounting of the violence that centuries of federal and state policies have inflicted on Indian children, Indian families, and tribal communities.  

Second, while many Americans might have some understanding of this history, most are unfamiliar with Tribal Nations or conceptualize Tribes as static and in the past tense.  Justice Gorsuch rejects this framing and affirms the ongoing role of Tribal Nations in our constitutional structure and in the modern world:

“Often, Native American Tribes have come to this Court seeking justice only to leave with bowed heads and empty hands. But that is not because this Court has no justice to offer them.  Our Constitution reserves for the Tribes a place—an enduring place—in the structure of American life.  It promises them sovereignty for as long as they wish to keep it. . . . In adopting the Indian Child Welfare Act, Congress exercised that lawful authority to secure the right of Indian parents to raise their families as they please; the right of Indian children to grow in their culture; and the right of Indian communities to resist fading into the twilight of history.”

A silver lining of Brackeen was the enormous outpouring of support for ICWA, including 21 pro-ICWA amicus briefs from a variety of experts with lived and professional expertise in child welfare and policy development.  Though these briefs were responsive to the legal arguments made in the case, they are also excellent resources for learning more about history, current practice, and the law from a variety of perspectives.

For example, those interested in research-based approaches to child welfare will appreciate the brief from Casey Family Programs and 26 of the Nation’s leading child welfare, adoption, foster care, and social work organizations, which cites extensive research and explains why ICWA is a model for child welfare best practices.  In addition, the brief filed by the American Academy of Pediatrics and the American Medical Association describes the effects of historical trauma on the health of Native children, and the brief from the American Psychological Association details ICWA’s research-supported benefits for Native children.

The voices of those who are actually affected are often missing from Supreme Court briefings, but a brief from tribal citizens who were involved with the child welfare system as youth details lived experiences in foster care and dispels misconceptions about Indian children’s experiences with ICWA.  Building on that perspective, a brief from the National Association of Council for Children and 30 other children’s rights organizations addresses how ICWA supports the best interests of children in state child welfare proceedings.  Likewise, a brief from organizations that represent parents in dependency cases discusses the constitutional rights afforded to parents and children, how those rights intersect with the child welfare system, and the importance of ICWA in establishing procedures that ensure child safety and protect family integrity.

Those who are interested in how the federal government and states exercise authority over child welfare will be interested in a brief from the American Bar Association, which describes how child welfare has long been governed by a combination of state and federal law, as well as a brief filed by Los Angeles County, which is the largest child welfare system in the country as well as home to the largest American Indian and Alaska Native population in the United States.  Finally, a bipartisan brief filed by 23 states and the District of Columbia highlights how ICWA both allows and encourages tribal-state collaboration in the area of child welfare.

The Supreme Court’s 7-2 decision in Brackeen is an enormous victory for Tribal Nations and child welfare advocates.  Yet, now is also the time to undertake serious efforts to both improve state compliance with ICWA and to increase support for tribal child welfare programs and tribal courts.

Improve state ICWA implementation. ICWA is a state-facing law that, as Justice Gorsuch noted, “installs substantive and procedural guardrails” in state proceedings “against the unjustified termination of parental rights and removal of Indian children from tribal life.”  There is no doubt that ICWA “has achieved considerable success in stemming unwarranted removals by state officials of Indian children from their families and communities,” as Justice Gorsuch noted.  However, he also recognized what most Indian child welfare advocates well know, which is that many states have struggled with effective ICWA implementation.  Indeed, some states continue to have the same or similar “shocking” disparities in state removal of Indian children vs. non-Indian children as they did when Congress passed ICWA in 1978.  

There are a number of efforts to improve state ICWA compliance that deserve greater research and support, including the development of specialized state ICWA Courts, state child welfare agency partnerships with Tribal Nations, and state ICWA laws.  The Native American Rights Fund (NARF) and our partner organizations have been involved in and supportive of these efforts for years, and we believe that each is an important part of a larger strategy to improve both state services to Indian children and their families and ICWA compliance.    

Strengthen tribal child welfare systems. While these state-facing efforts are no doubt important, the reality is that when Indian children are involved in state child welfare systems, the services are usually provided by, and the decisions are usually made by, non-Indian people who may have a fundamentally different worldview than the child or her family. For this reason, NARF encourages funders to look for opportunities to build and strengthen tribal child welfare systems and courts.

Tribes have inherent jurisdiction over the well-being of their citizens, including tribal children.  This jurisdiction predates the United States and is concurrent with state jurisdiction.  Many Tribal Nations operate their own child welfare systems that focus on prevention, rehabilitation, and family reunification and provide culturally-centered services.  Tribes also operate tribal court programs that are similarly grounded in cultural and traditional forms of dispute resolution.  And as a practical matter, Tribes are frequently the governments that are located closest to their citizen children and families and are thus more able to recognize and respond to difficulties a family may be facing.

Tribal Nations know that their strength as sovereign nations is inseparable from the health and wellness of their children.  As child welfare experts have noted, tribal programs are on par with, or exceed, what many states provide.  Yet despite being best positioned to respond to children and families, Tribes are often overlooked by funders and funding agencies.  To honor the generations of children removed from their communities and the goals articulated in ICWA, now is the time for a meaningful investment in Tribal systems.