Indian Child Welfare Act again reaches U.S. Supreme Court

The basics of ICWA and why the high court is reviewing it now.

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WASHINGTON — The U.S. Supreme Court on Monday announced that it will review the constitutionality of the Indian Child Welfare Act (ICWA).

What it is: A 1978 federal law meant to reunify American Indian and Alaska Native children with their families and tribes.

Why it became law: “Studies revealed that large numbers of Native children were being separated from their parents, extended families, and communities by state child welfare and private adoption agencies,” notes the Indian Child Welfare Association. “[R]esearch found that 25%–35% of all Native children were being removed; of these, 85% were placed outside of their families and communities — even when fit and willing relatives were available.”

Did it work? Many in Indian Country have found it to be a useful tool to keep Indian children with Indian families after decades of forced assimilation and removal. Many child welfare experts — but not all — agree that it is an important legal standard with a solid historical rationale.

Why it’s controversial: It was progressive for its time, giving tribal citizens a victory in a federal system that had long been stacked against them. Conservatives tend to dislike the law, arguing that it is an affront to states’ rights. At the same time, adoption agencies have not uniformly followed the law, so potential non-Indian adoptive parents have had Indian children who were placed in their homes taken away from them. These parents and their legal advocates have argued through the years that the law unfairly discriminates against them, based on historical issues that have nothing to do with their individual circumstances. Such cases can quickly become emotionally charged, based on love and attachment, and they can ironically have anti-Indian racial elements. Anti-Indian interests have sometimes purposely weaponized the emotion-laden cases against tribal sovereignty and citizenship.

U.S. Congress’ role: Over the decades, various efforts have occurred in Congress to water down the law via various amendments that would give states and localities more autonomy over various ICWA-related situations. The law has remained intact in Congress, but increasing, coordinated legal challenges have occurred against it.

What the Supreme Court is doing: The high court on Monday consolidated four ICWA-related cases, and it will hear one hour of arguments on Texas v. Haaland this fall, with a decision expected in 2023. Three states — including Texas, Louisiana and Indiana — and seven individuals — including non-Indian foster parents — will argue that ICWA wrongly requires that state officials set aside doing what is in the best interests of the child, while violating the U.S. Constitution’s equal protection clause.

“ICWA operates as a unified scheme that places ‘Indian children’ in a disfavored position, depriving them of a placement decision based on their best interests, and instead requiring placements” based on Native identity, the plaintiffs argued in part within their filing. They feel this puts non-Indian adoptive parents at a disadvantage — and that the child’s extended family, citizens of his or her tribe and citizens from other federally recognized tribes are given unfair preference under the law. Note that the plaintiffs place the words “Indian children” within quotes within their argument, implying an arbitrary nature to that distinction.

Why now: Challengers to ICWA, as well as the Biden administration and tribal advocates and leaders, all asked the Supreme Court for review after the U.S. Court of Appeals for the 5th Circuit last spring issued a 325-page ruling on the law that split evenly on some issues, including a range of opinions from six judges. The decision was widely viewed as convoluted, with some portions pro-tribe and some pro-state. The complex decision did serve to overturn a Texas federal judge's 2018 ruling that found ICWA to be illegally race-based. At the same time, it said ICWA violates the Constitution's requirements against commandeering state officials.

The Supreme Court’s grant of review comes after the high court in 2013 famously ruled in a 5 to 4 decision that ICWA did not require a child, known as “Baby Veronica,” to remain with her tribal birth father after the child was given up before her birth. While the case was emotional — and many Native advocates worried it could be harmful to ICWA — the court ultimately did not choose to decide on constitutionality of the law at that time.

What Indian advocacy organizations are saying: The National Indian Child Welfare Association, the National Congress of American Indians, the Association on American Indian Affairs, and the Native American Rights Fund — under the joint banner of the “Protect ICWA Campaign” — released the following statement:

“Today, the U.S. Supreme Court announced that it will hear a challenge to the Indian Child Welfare Act (ICWA), a 44-year-old law which has long been considered the gold standard in child welfare policy. The far-reaching consequences of this case will be felt for generations.

“ICWA is widely supported by an impressive array of stakeholders within and outside of Indian Country. At the lower court, 486 Tribal Nations, 59 Native organizations, 31 child welfare orgs, 26 states + DC, and 77 members of Congress offered support for ICWA. These supporters recognize that ICWA is firmly in the best interests of Native children. In keeping them connected to their extended family and cultural identity, the positive outcomes are far-reaching and include higher self-esteem and academic achievement. Further, they recognize that collaboration between sovereign Tribal Nations and state child welfare systems is effective and just governance.

“ICWA supporters are immersed in the historical background and present-day application of this law, which cannot be said of the few opponents who wish to overturn the law. In a coordinated, well-financed, direct attack, Texas and other opponents aim to simultaneously exploit Native children and undermine tribal rights. Their goal, weakened protections for Native children, would be a certain outcome of dismantling ICWA, clearing the way for bad actors to grow their control of Native land, Native industry, and Native futures. 

“Our opponents do not represent the best interests of Native children, families, or peoples; in fact they seek to undermine them. ICWA is a cornerstone to our Tribal Nations, and the Protect ICWA campaign will continue to defend ICWA in the interest of Native children and the future of Tribal Nations.”

What tribal leaders are saying: Cherokee Nation Principal Chief Chuck Hoskin Jr., Morongo Band of Mission Indians Chairman Charles Martin, Oneida Nation Chairman Tehassi Hill and Quinault Indian Nation President Guy Capoeman said in a joint statement that the 5th Circuit "wrongly ruled against key provisions of the law, including on active efforts and flawed claims of [state] commandeering violations."

"We are glad to hear that the U.S. Supreme Court has granted cert to reexamine these aspects of the decision and look forward to once again seeing ICWA fully upheld, as courts have repeatedly done for over four decades," they said.