Upholding ICWA: A Deeper Look at SCOTUS’s Important Ruling

“As Congress put it, there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children.” – Haaland v. Brackeen

You could hear the victory cries throughout Indian Country last Thursday, as the U.S. Supreme Court (SCOTUS) ruled to uphold the Indian Child Welfare Act (ICWA). In a huge victory for tribal sovereignty, a 7-2 decision by the court rejected all the challenges to the act and the claims that the law violates the U.S. Constitution by discriminating on the basis of race.

In 1978, Congress enacted ICWA out of concern that “an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies.” 92 Stat. 3069, 25 U. S. C. §1901(4).

Congress found that many of these children were being placed in non-Indian foster and adoptive homes and institutions, and that the states had contributed to the problem by “fail[ing] to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families.” §§1901(4), (5).

This harmed not only Indian parents and children, but also Indian tribes.

Congress’s intent of ICWA was to “protect the best interests of Indian children and to promote the stability and security of Indian tribes and families.” (25 U.S.C. § 1902), with ICWA being labeled a “gold standard” of child welfare policy by national child advocacy organizations and social work experts around the country.

After the darkness comes light!

This reaffirming decision by SCOTUS makes clear the inherent rights of Indian people and their ability to choose who their tribal citizens are.

Justice Amy Coney Barrett rejected an argument from Republican-led states and white families who claimed that the system is based on race, saying, “In sum, Congress’s power to legislate with respect to Indians is well established and broad.” Justice Neil Gorsuch wrote in a concurring opinion, “The Indian Child Welfare Act did not emerge from a vacuum. It came as a direct response to the mass removal of Indian children from their families during the 1950s, 1960s, and 1970s by state officials and private parties.”

In this attempt to repeal ICWA under the guise of race-based discrimination and anticommandeering, the people behind the case sought to topple a foundational piece of tribal sovereignty. If ICWA was not upheld, the implications of what it could do to tribal sovereignty was on the minds of many legal scholars, tribal leaders, and anyone with a sense of the complex nation-to-nation relationships with the United States.

When many think of the struggles of Indian peoples, they often look at us as a relic of the past. They do not understand we are still here and still fighting to protect our autonomy and our right to exist as Indian people. During the dark time when Indian children were actively taken from their homes, parents were scared to open their doors to strangers or take their children to doctors and dentists at the risk of child welfare being called. Families and children were stripped of their loved ones and identities. It was another attempt by the government to “save the man, kill the Indian.”

Investing in Native youth

The purpose of ICWA is to preserve and protect the cultural identity of Indian children by placing them within Native communities and providing them with families that have the same or similar values, both traditional and cultural. By keeping their identities intact, Indian children continue to be engrained in their heritage and become tribal knowledge holders – connecting with their language, ceremonies, and ways of life.

Family and community are everything you know and are familiar with — the love, the hope, the heartache, the happiness, and the future. Who you are is molded by those crucial relationships and your purpose and identity is nourished by the love and support of your family and community, making the decision by SCOTUS even more important.

As an Indigenous-led organization, First Nations is guided by family values, and we understand the importance of family and community. Our programs uphold our belief that Native youth represent the future of Native communities, and that their health and well-being determine the future health and well-being of communities overall. We work to strengthen Native communities and economies, empower Native families, and nurture Native youth.

 “The Supreme Court’s decision in the Haaland v. Brackeen case reinforces the fundamental principles of tribal sovereignty. An inherent right exists for tribal governments to determine the best interests of their children. By involving tribes in child custody proceedings and placement decisions, ICWA respects the autonomy and authority of tribal nations. This fosters stronger relationships between tribes and state child welfare agencies, working toward mutually beneficial solutions for the well-being of Native American children… Are tribes sovereign? The case fundamentally answers the question. Yes, they are.” – Patrick Brenner, Albuquerque Journal

Marisa Page
First Nations Development Officer