The Indian Child Welfare Act (ICWA or the Act) was enacted in 1978 to stop what supporters called “the devastating impact” caused by removing Native American children from their parents, families and communities. The State of Texas and three private parties challenged the Act, arguing that Congress had no authority to enact it. They said the federal law was unconstitutional, infringed on state sovereignty, and discriminated on the basis of race. The United States Supreme Court disagreed, finding the ICWA “consistent with Congressional authority.”

This Supreme Court opinion refers to the children as “Indians,” which is acceptable according to the Smithsonian Institution, although the term Native American or the name of the tribe are now the “preferred politically correct terms.”

Writing for the majority in a 7-2 decision by the Supreme Court on June 15, Justice Amy Coney Barrett began the Court’s opinion in Haaland (Secretary of the Interior) v. Brackeen (non-Indian foster parents) with a historical overview of the ICWA. She explained that “This case is about children who are among the most vulnerable: those in the child welfare system.” Normally, she said, state courts apply state law to decide the placement of children in foster homes or with those who seek to adopt them. When the child is an Indian however, the ICWA requires state courts to place the child with an Indian caretaker if one is available. This applies even if the child is “already living with a non-Indian family and the state court thinks it is in the child’s best interest to stay there.”

Justice Barrett then provided a brief history of the ICWA. She said it was “enacted…out of concern that an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal and public agencies.” The National Indian Welfare Association, which supported the Act, said that 25% to 35% of all Native children were being removed and 85% were placed “outside their families and communities.” Barrett then quoted Congress as saying, “There is no resource that is more vital to the continued existence and integrity of Indian tribes than their children.”

The ICWA applies to both voluntary and involuntary adoption proceedings. Voluntary proceedings are those in which parents relinquish parental rights. Involuntary proceedings are those in which outside parties seek to terminate those rights. For both proceedings, the Act requires that Indian children be placed with Indian families unless the state court finds “good cause” to remove them. Good cause is found if the child is determined to be in an “unsafe environment” by a heightened burden of proof and expert testimony.

The Act also contains a hierarchy that requires children to be placed with Indian families from “any tribe” before they are placed with non-Indian families. The hierarchy ranks in order: members of the child’s extended family; other members of the child’s tribe; Indian foster homes; or other institutions approved by the tribe if operated by an Indian organization. All are ranked above non-Indian families. The Act also requires that the parents of the child who is up for adoption must be given notice and the right to intervene.

This case came from three separate child custody proceedings, all of which challenged the ICWA. A.L.M. was placed with Chad and Jennifer Brackeen, non-Indian Texans, when he was 10 months old. The child’s biological mother is Navajo, and his biological father is Cherokee. The Brackeens sought to adopt him after a year as foster parents. Members of both the Navajo and Cherokee Nations challenged the adoption and asked that A.L.M. be placed with an Indian family in New Mexico. The Brackeens prevailed in litigation, and A.L.M. was allowed to remain with them.

Baby O, the second petitioner, was given to Nick and Heather Libretti for adoption by the child’s birth mother, who is not Indian. The father, however, was a member of the Ysleta del Sur Pueblo Tribe, which challenged the adoption. When this case began, the tribe withdrew its objection, and Baby O was adopted by the Librettis. The final petitioners are Jason and Danielle Clifford from Minnesota who sought to adopt Child P, whose maternal grandmother was a member of the White Earth Band of Ojibwe Tribe. Following the ICWA, the court denied their adoption request.

The Brackeen, Libretti, and Clifford families all sued the Department of the Interior in federal court, challenging the constitutionality of the ICWA. They were joined by Texas, Indiana and Louisiana, although only Texas joined the appeal to the Supreme Court. The District Court granted summary judgment to the petitioners, and a divided Fifth Circuit reversed. Cert was granted.

The Supreme Court opinion stressed that “a long line of cases have characterized Congress’s power to legislate with respect to the Indian tribes as ‘plenary and exclusive.’” Justice Barrett wrote that petitioners’ arguments that the ICWA “treads on state’s authority over family law” was “a non-starter.” She also disputed petitioners’ arguments that “Congress’s authority does not stretch far enough to justify ICWA.” She said that contention “failed to grapple with precedent.”

Other arguments about state’s rights failed as well because they ran “headlong into the Constitution.” For example, the court’s majority opinion pointed out that Texas lacks standing to challenge the hierarchical placement preferences because the State was “not injured” and could not bring other claims.

Justices Clarence Thomas and Samuel Alito filed lengthy dissents. Thomas said the Constitution does not give the Federal Government the power to regulate the non-commercial acts of a U.S. citizen merely because he happens to be an Indian. He said the ICWA “fails under the plain text and original meaning of the Constitution.”

In reaction to the decision, columnist George Will called the ruling “a blunder” that will make “the lives of some Indian children…unnecessarily miserable.” He said, “This especially unpleasant manifestation of identity politics will continue to multiply broken hearts and bodies.”