November is Native American Heritage Month. This is a time to recognize the significant contributions Native Americans have made, and continue to make, to the United States of America. This month celebrates the rich and diverse cultures, traditions, and histories of Native peoples. It also provides an opportunity to raise awareness about the unique challenges faced by Native Americans, many of which continue in the present.
The US Supreme Court heard oral arguments Wednesday November 9th in the case of Brackeen v. Haaland, which will decided whether certain sections of the Indian Child Welfare Act (ICWA) are unconstitutional. The plaintiffs argue that it provides an unlawful racial preference in child custody and adoption cases and unlawfully intrudes on a state right to regulate child placement. Those in favor of the law say that it aims to prioritize the placement of Native American children with their extended families or tribal communities, where their cultural identities will be understood and celebrated.
The ICWA was passed by Congress in 1978 in response to the long and tragic history of separating Native American children from their families by state agencies, sometimes by force, who would place the children in institutions or with non-tribal foster families. The removal of a Native American child was not always due to abuse or neglect by a parent but was often due to misplaced beliefs about tribal life and poverty. The separation notorious with the federal government’s removal of Native American children to boarding schools, continued into the mid-20th century through state-court proceedings that determined, without considering Native American culture, that children had been neglected or abandoned. These children were then placed with families that were not Native American.
To address this history, the ICWA establishes minimum standards for the removal of Native American children from their families and establishes a preference that Native American children who are removed from their families be placed with extended family members or in Native foster homes. By keeping Native American children within their family and tribe, there is opportunity to better foster their culture and identity. Under ICWA, tribal courts have exclusive jurisdiction over child-custody proceedings involving Native children who live or have their permanent residence on tribal land.
Brackeen v. Haaland was filed in federal court in Texas by the states of Texas, Indianan and Louisana, three couples who are not Native American who have tried to foster or adopt children with Native American ancestry, and one of the children’s biological mother. Four tribes have joined the case to defend the ICWA. The federal district court held that the ICWA was unconstitutional, but this was reversed by the U.S. Court of Appeals for the 5th Circuit.
A decision in Brackeen v. Haaland will address two fundamental issues:
- Whether the ICWA’s placement preferences — which disfavor non-Indian adoptive families in child-placement proceedings involving an “Indian child”— discriminate on the basis of race in violation of the U.S. Constitution
- Whether ICWA’s placement preferences exceed Congress’ Article I authority by invading the arena of child placement — the “virtually exclusive province of the States,” as stated in Sosna v. Iowa — and otherwise commandeering state courts and state agencies to carry out a federal child-placement program
The challengers (Texas and the non-Native American adoptive families), contend that the ICWA’s use of an “Indian child” classification to create placement preferences violates the Constitution’s requirement of equal protection under the law. They also argue that states, not Congress, have long been delegated the power to regulate adoption and child-custody proceedings. The tribes counter that Native American children have “always been a federal (and tribal) sphere,” insisting that the Constitution gives Congress the power to regulate Native American affairs broadly, as part of the duty of protection that the federal government owes to Native Americans. In particular, they say Congress’ power to regulate commerce with tribes has never been limited to “buying, selling, and transporting goods” (a common definition of “commerce”). They contend that the Constitution gives Congress the power to regulate all interactions between Native Americans and non-Native Americans.
Native American tribes have called the ICWA “one of the most important pieces of federal Indian legislation ever enacted,” and warn that a ruling in favor of the challengers “would work profound harm on Indian children and Tribes.” They feel that the ICWA “prospectively incorporates Tribes’ own preferences into federal law.” According to the American Civil Liberties Union (ACLU), who filed an amicus brief with the US Supreme Court:
“If the Supreme Court overturns ICWA, states would once again be allowed to indiscriminately remove Native children from their families and culture while simultaneously depriving tribes of future generations — putting the very existence of tribes in jeopardy.”
Today Native American programs and courts work with state courts to determine the best placement of a Native American child with preference being given to placement with a family or tribal member to help the child remain in touch with their extended tribal family.