WASHINGTON – The state of Texas, four tribes along with several parents, including non-Native, have filed petitions asking the U.S. Supreme Court to review the constitutionality of the Indian Child Welfare Act (ICWA).
Those seeking the Supreme Court review include the state of Texas, three adoptive families who are individual plaintiffs in the case, and the Cherokee Nation, Oneida Nation, Quinault Indian Nation and Morongo Band of Mission Indians. Also seeking review is President Joe Biden’s Secretary of the Interior, Deb Haaland, who became the named lead defendant in the case upon being confirmed to her position.
The petitions are a response to the U.S. 5th Court of Appeals decision last April in the Brackeen v. Halaand, formerly Brackeen v. Bernhardt, that alleged ICWA is unconstitutional for discriminating against non-Native families in the placement of Native children.
The U.S. 5th Court of Appeals ruled that Congress has the authority to enact the Indian Child Welfare Act (ICWA) which gives preference to Indigenous families in the adoption of Native American children.
Texas argues that the Indian Child Welfare Act makes it more difficult to remove Native American children from their families in foster care and adoption cases. The parties claim the law is racist and gives tribes too much power over states.
At trial, the adoptive parents and the state of Texas argued that the federal law contradicted the state’s law that requires adoptions to be made in the best interest of the child. They said the Indian Child Welfare Act hurts children by keeping them in the child welfare system for longer than necessary, given that they had loving and willing adoptive parents.
Tribes and other defenders of the law stated the best interest of Indian children is served when they are able to maintain strong connections to their cultural roots, whether it be reuniting with their birth parents or moving in with other tribal families.
ICWA was passed by Congress in 1978 in response to Native American children being placed with non-Native families after being removed from their homes. Research by the National Indian Child Welfare Association found 25%-35% of all Native children were forcibly removed from their home by state child welfare and private adoption agencies and of those, 85% were placed with non-Native families, even when fit and willing relatives were available.
The National Congress of American Indians released the following statement:
“On September 3, 2021, the United States, tribal defendants, and state and private plaintiffs filed petitions asking the United States Supreme Court to review the Fifth Circuit Court of Appeals’s decision in Brackeen v. Haaland, a case challenging the constitutionality of the Indian Child Welfare Act (ICWA). The Protect ICWA Campaign stands with the United States and tribal defendants who have defended ICWA and its critical protections for Indian children and families who are in state court child custody proceedings.”
“ICWA represents the gold standard in child welfare practice and has helped tens of thousands of Indian children and families find fairness and healing in state child welfare systems for over 40 years.”
NCAI is one of the national American Indian organizations consisting of the Protect ICWA Campaign. The others are the National Indian Child Welfare Association, the Association on American Indian Affairs and the Native American Rights Fund.
“There will be some additional briefing over the next 30 days, and then/eventually the Court will decide whether to hear the case or not,” according to a post on Turtle Talk, a leading blog reporting on issues in Indian Country.
The U.S. Supreme Court does not have to take the case. If four of the nine judges agree, Brackeen v. Haaland will be granted certiorari and scheduled for arguments.
Adoptive parents v. Baby Girl was the last Indian Child Welfare case the U.S. Supreme Court heard in 2013. The court ruled in the favor of the non-Native parents over a non-custodial Native parent.
Mvskoke Media will follow the case and report important updates on this story.