Supreme Court to Hear ICWA Challenge

Mar 17, 2022 | Insights

On February 28, the United States Supreme Court announced that it would hear a challenge to the Indian Child Welfare Act (ICWA) in the Haaland v. Brackeen case.  The Supreme Court will consider the constitutionality of ICWA, its validity under the Indian Commerce Clause, and claims that ICWA violates the equal protection clause.  The Court’s resolution of these issues threatens the long-standing relationship between tribes and the United States. The court will hear the case during its term that begins in October 2022.

ICWA was first enacted by Congress in 1978 in response to the ongoing removal of native youth from their families, communities, and tribes, as well as studies showing the devastating impact on native youth and their tribes.  ICWA reaffirms the right of tribal nations to be involved in child welfare cases involving their members.  ICWA sets federal requirements that apply to state proceedings involving an Indian child who is a member of or eligible for membership in a federally recognized tribe.

The case started in a Federal District Court in Texas when a non-Indian couple attempted to adopt a 2-year-old Navajo boy over a Navajo family who was available.  The District Court found that ICWA was unconstitutional, and the case was appealed to the Fifth Circuit Court of Appeals.  The Fifth Circuit panel originally reversed the District Court finding ICWA constitutional.  On rehearing before the full court, the Fifth Circuit issued several competing opinions.

Overall, the Fifth Circuit upheld ICWA and the “political” as opposed to “racial” classification of Indian children.  However, portions of the opinion also undermine federal requirements imposed on state agencies in ICWA cases.  One of the major attacks against ICWA in the Brackeen case has come from advocates for “states’ rights.”  They argue that the federal government cannot commandeer state agencies for federal purposes.

Opponents to ICWA include Texas, Louisiana, Indiana, Ohio, and other groups and individuals. They claim the child “placement preferences,” and other provisions in the law, place an excessive burden on states to involve and defer to tribes in foster-care decisions.

In the Fifth Circuit Court of Appeals, almost 500 tribes and 60 tribal organizations joined the briefing in support of ICWA.  In addition, 26 states and the District of Columbia joined briefs in support.  ICWA is also supported by child welfare and adoption organizations.

Patterson Earnhart Real Bird & Wilson LLP is dedicated to the representation of American Indian tribes, tribal entities, and individual Indians across the United States. Our mission is to support and advance the sovereignty, self-sufficiency, and self-governance of our tribal clients. To learn more about how we can assist your tribe, contact attorney Jeremy Patterson in our Colorado office at (303) 926-5292.