Updated: Oct 26, 2021
The Morongo Band of Mission Indians and four other tribes from across the nation have joined the federal government in petitioning the U.S. Supreme Court to uphold a law that gives adoption preference for American Indian children in state foster care to American Indian families.
In a petition filed Sept. 3, the tribes are essentially requesting that the high court leave intact the Indian Child Welfare Act, a law enacted in 1978 amid a trend that saw an “alarmingly high percentage” of American Indian children separated from their families by nontribal public and private agencies.
U.S. Secretary of the Interior Deb Haaland, who is of American Indian descent, also has petitioned the Supreme Court to uphold the law, while the state of Texas, on behalf of Chad and Jennifer Brackeen, have petitioned the high court to repeal the law, claiming it is unconstitutional.
ICWA has withstood legal challenges for more than 40 years, but in the past four years federal judges have been divided on its constitutionality.
“Over the ensuing four decades, state courts have repeatedly sustained ICWA as constitutional, and child-welfare professionals now regard ICWA’s procedural and substantive requirements as the gold standard for child welfare,” according to the petition filed by Morongo, the Cherokee Nation of Oklahoma, the Oneida Nation of Wisconsin and the Quinault Indian Nation in Washington.
In its petition, Texas maintained that ICWA is a race-based system that creates a “child-custody regime for Indian children defined by a child’s genetics and ancestry,” and is designed to make the adoption of Indian children by non-Indians more difficult.
Questions raised in the Texas petition include: Does Congress have the power to enact laws governing state child-custody proceedings merely because the child is or may be an Indian, and does the Indian Child Welfare Act violate the Constitution’s equal protection guarantee by providing American Indian families preference in the adoption of American Indian children?
“The significant constitutional questions in this case and their implication on the treatment of numerous vulnerable children deserve the Court’s attention,” according to the petition.
Challenge to law in 2017
ICWA was challenged in 2017, when the Brackeens joined the states of Texas, Indiana and Louisiana as plaintiffs in a federal lawsuit testing the welfare act’s constitutionality.
The Brackeens had successfully fought in state court efforts by social workers to place a Navajo-Cherokee boy they were trying to adopt with a Navajo family in New Mexico. The couple, however, hit another roadblock when they tried to adopt the boy’s half-sister, who was placed with a tribal family in Texas.
In October 2018, federal Judge Reed O’Connor of the Northern District of Texas declared ICWA unconstitutional. The federal government appealed to the Fifth Circuit Court of Appeals in New Orleans, and In August 2019 the three-judge panel overturned Reed’s ruling. But it didn’t end there.
The plaintiffs appealed again to the Fifth Circuit, only this time requesting that all 17 circuit judges review the matter and decide. The request was granted.
On April 21, the Fifth Circuit released its more than 300-page opinion — a mixed bag that largely upheld the law, but in which some judges agreed that certain provisions of ICWA were unconstitutional and others were constitutional, leaving the outcome less than clear.
Now, both the plaintiffs and the defendants have petitioned the nation’s highest court to review the case.
Texas noted in its petition that eight of the Fifth Circuit judges “amply demonstrated” that clarification was needed about the limits on Congress’ authority to legislate with respect to Indians.
Matthew D. McGill, an attorney for the Brackeens, did not immediately respond to a request for comment.
Should the Supreme Court hear the case, its decision would not impact the Brackeens or their adopted children, but could determine the fate of future American Indian children in the foster system, and upend the ICWA process that has existed for decades.
“Our tribes continue to fight for ICWA because it ensures the best outcomes for Indian children by keeping them connected to their families and tribal communities. We can never go back to the dark times when Indian children were removed from their homes and stripped of their heritage,” the petitioning tribes said in a statement.
David Simmons, director of governmental affairs and advocacy for the National Indian Child Welfare Association in Portland, Oregon, stressed that ICWA has helped stem a centuries-old practice by the federal government and private agencies of systemically separating American Indian families.
“We’re looking at almost 200 years of really difficult policies and terrible practices,” Simmons said, noting, as another example, the establishment of Indian boarding schools in the 19th century that also resulted in American Indian children being torn from their families.
The recent unearthing of mass graves at former boarding schools in Canada has prompted the U.S. Department of Interior to launch an investigation of more than 350 American Indian boarding schools nationwide that operated under the government’s cultural assimilation program in the 19th and 20th centuries.
“We know that (ICWA) is working very well throughout the country … yet we have some opponents trying to dismantle it and have it ruled unconstitutional, despite the evidence of how well it’s worked,” Simmons said. “There’s a lot at stake here, and it’s important that the general public understands that (ICWA) stands as a beacon in child welfare practices.”
Ken Ramirez, chairman of the San Manuel Band of Mission Indians in San Bernardino, said in a statement Friday that, for more than 40 years, the Indian Child Welfare Act has helped reverse the tide of one of the most enduring historical attacks on Native American people: the forcible removal of American Indian children from their homes, tribal cultures, and tribal communities.
“We are hopeful that the United States Supreme Court will review this case and affirm the constitutionality of the Indian Child Welfare Act,” Ramirez said. “Those who seek to remove Native children from their homes and tribal communities should not be emboldened to return to the harmful and tragic practices of the past.”