UPDATED: Supreme Court affirms ICWA

'The bottom line is that we reject all of petitioners’ challenges to the statute, some on the merits and others for lack of standing’

The Supreme Court handed down a major decision Thursday in the Haaland v. Brackeen case, affirming the constitutionality of the Indian Child Welfare Act by a 7-2 vote.

Justices Clarence Thomas and Samuel Alito were the lone justices to dissent.

The decision represents a major victory for federal Indian law and tribes across the nation.

In the opinion, authored by Justice Amy Coney Barrett, said the court “declines to disturb the Fifth Circuit’s conclusion that ICWA is consistent with” Congress’s authority under the Constitution in Article I.

“The United States, joined by several Indian Tribes, defends the law,” read the opinion. “But the bottom line is that we reject all of petitioners’ challenges to the statute, some on the merits and others for lack of standing.” Challengers cited that ICWA was against “federal authority, infringes state sovereignty, and discriminates on the basis of race.”

Justice Neil Gorsuch, the justice with extensive federal Indian law knowledge and experience of all the justices, wrote in support:

“Often, Native American Tribes have come to this Court seeking justice only to leave with bowed heads and empty hands. But that is not because this Court has no justice to offer them. Our Constitution reserves for the Tribes a place—an enduring place—in the structure of American life. It promises them sovereignty for as long as they wish to keep it. And it secures that promise by divesting States of authority over Indian affairs and by giving the federal government certain significant (but limited and enumerated) powers aimed at building a lasting peace.

“In adopting the Indian Child Welfare Act, Congress exercised that lawful authority to secure the right of Indian parents to raise their families as they please; the right of Indian children to grow in their culture; and the right of Indian communities to resist fading into the twilight of history. All of that is in keeping with the Constitution’s original design.”

Haaland v. Brackeen wasn’t the only Supreme Court case affecting Native people directly. The court also released a decision regarding Lac Du Flambeau Band of Lake Superior Chippewa Indians et. al. v. Coughlin. ICT will have more on this case soon.

The third federal Indian law case this term, Arizona v. Navajo Nation, has yet to be decided by the end of the month along with 22 other cases.

“For purposes of comparison, between June 13, 2022, and the last opinion day of the 2021-22 term (June 30, 2022), the court issued 29 decisions,” wrote former editor and reporter of SCOTUSblog Amy L. Howe. 

President Joe Biden also weighed in shortly after the Haaland v. Brackeen ruling was released. He said ICWA is a vital law he is proud to support and stands with tribes.

The ruling keeps in place a vital law that protects tribal sovereignty and Native children, Biden said in a statement.

“Our Nation’s painful history looms large over today’s decision. In the not-so-distant past, Native children were stolen from the arms of the people who loved them. They were sent to boarding schools or to be raised by non-Indian families—all with the aim of erasing who they are as Native people and tribal citizens,” the statement reads. “These were acts of unspeakable cruelty that affected generations of Native children and threatened the very survival of Tribal Nations. The Indian Child Welfare Act was our Nation’s promise: never again.”

Interior Secretary Deb Haaland, Laguna Pueblo, called the decision “a welcome affirmation across Indian Country of what presidents and congressional majorities on both sides of the aisle have recognized for the past four decades.”

“For nearly two centuries, federal policies promoted the forced removal of Indian children from their families and communities through boarding schools, foster care, and adoption. Those policies were a targeted attack on the existence of Tribes, and they inflicted trauma on children, families and communities that people continue to feel today.”

Angelique EagleWoman, Sisseton Wahpeton Oyate (Dakota), described the decision as a “full circle moment” for Haaland. EagleWoman is a professor of law as well as the director of Native American Law & Sovereignty Institute at Mitchell Hamline School of Law.

“How wonderful it is to see Secretary of Interior Deb Haaland, Laguna Pueblo, have her name on a case, 7 to 2, that upholds the Indian Child Welfare Act,” she said. “I’m sure she breathed a huge sigh of relief to have her name in history in this manner.”

EagleWoman added that Gorsuch heavily relied on the investigation Haaland started through the Bureau of Indian Affairs into boarding schools to give historical context in his concurring opinion.

“We have a full circle moment here. We have cultural affirmation, we have true justice,” EagleWoman said. “So there’s a lot of good here.”

Tribes, Native organizations, advocates and allies cheered for the decision reposting sentiments like “tribal sovereignty wins” or “ICWA stands!”

Mary Kathryn Nagle, Cherokee, is a Native rights attorney and Counsel to the National Indigenous Women’s Resource Center for which she filed an amicus brief on behalf of in the case.

She emphasized what the day means to Indian Country, “we just could not have gotten better news. This is an incredible, incredible victory.”

“It’s definitely a day for Indian Country to celebrate,” Nagle told ICT.

Like many, she was still reading through the 133 page opinion as the news broke Thursday morning. She noted that there will be a number of Native attorneys and federal Indian law lawyers who will comb through the court’s opinion.

The first thing she said that jumped out at her was the overwhelming win for tribes.

“Just the fact that we won on every single issue and Gibson Dunn (the law firm representing the petitioners’) is not taking home anything,” Nagle said. “They’re not winning on a 10th amendment issue. They’re not winning on Indian as a race-based classification. They’re not winning on anything is huge.”

The Indian Child Welfare Act was enacted in 1978 and its purpose is “…to protect the best interest of Indian Children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children and placement of such children in homes which will reflect the unique values of Indian culture…,” the Bureau of Indian Affairs website states.

For years, ICWA has been long seen as the “gold standard” for child welfare policy.

The Protect ICWA campaign, which includes the National Indian Child Welfare Association, the National Congress of American Indians, Native American Rights Fund and the Association of American Indian Affairs, said they are all “overcome with joy” that ICWA has been upheld.

“One thing is certain: ICWA is crucial for the safety and well-being of Native children and families and the future of Native peoples and Tribal Nations,” the campaign said in a statement. “The positive impact of today’s decision will be felt across generations.”

The campaign said they will give a deeper analysis Thursday afternoon after a legal review.

The ruling is an affirmation of rule of law and the constitutional principles of the relationship between Congress and tribes, 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 statement.

They hope that this decision will slow the “political attacks” aimed at diminishing tribal sovereignty.

“By ruling on the side of children’s health and safety, the U.S. constitution, and centuries of precedent, the justices have landed on the right side of history. With these latest political attacks on ICWA now behind us, we hope we can move forward on focusing on what is best for our children,” the statement says.

Native members of Congress, Tom Cole, Chickasaw, and Sharice Davids, Ho-Chunk, shared a joint statement as co-chairs of the Congressional Native American Caucus. Echoing many, they said ICWA has protected vulnerable Native children since it was enacted and applauded the Supreme Court.

“This landmark decision rightly upholds protections for Native children and reaffirms the sovereign rights of tribal governments,” their statement reads. “We applaud the Supreme Court in rejecting these challenges and standing with Native American children and their right to remain in their own cultures.”

Indigenous peoples woke up to the news as early as 6:07 a.m. in Alaska. Social media reactions range from ICWA supporters saying they’re “really emotional” or “grateful for today.”

Charitie Ropati, Yup’ik and Samoan, wrote on Twitter, “Celebrate today, celebrate indigenous youth joy.”

Medical student and Forbes contributor Victor Lopez-Carmen, Hunkpati Dakota and Yaqui, gave kudos to the lawyers involved. “Just wanna throw a big party for all the Native lawyers who bodied this. Wow. Y’all really are incredible,” Lopez-Carmen wrote on social media. 

In an April 2021 decision, the U.S. Court of Appeals for the Fifth Circuit upheld certain sections of ICWA and flagged constitutional concerns about others, prompting appeals on both sides. The U.S. Supreme Court granted petitions to review the Fifth Circuit’s decision and heard the case last November. Congressional members, 87 in total, filed a bipartisan, bicameral amicus brief defending ICWA’s constitutionality in Haaland v. Brackeen.

Oral arguments on the landmark case took place in November. Indigenous people from around the country traveled to Washington, D.C., for the hearing.

Kimberly Jump-CrazyBear, Osage and Oglala Lakota, was one of many who showed up to show support for the Indian Child Welfare Act.

“I’m just here on behalf of all of you who can’t be here today. To help lend my voice,” she told ICT before the oral arguments for Haaland v. Brackeen began. “Without our children, we don’t have a people anymore.”

While it is a day for celebration, Nagle said it is also important for tribes to stay vigilant and to support and heal one another after enduring the trauma of this long legal fight.

“They’re gonna probably try to find a different way to attack us. And so we have to celebrate, then we also have to kind of come back together and understand where the next attack is going to come from. And that’s unfortunate, but I think that’s just what it means to be Indigenous in the United States. So, but I think the first thing to do is to really celebrate because this is, I think, next to McGirt, the most incredible decision, victory we’ve gotten in the Supreme Court ever.”