On Thursday, the U.S. Supreme Court delivered a decisive victory for tribal nations. In a 7-2 ruling in Haaland v. Brackeen, the Court upheld the constitutionality of the Indian Child Welfare Act, rejecting a challenge that University of Michigan law professor Matthew Fletcher described to High Country News as “a broadside against virtually (all) of federal Indian law.”
Passed in 1978, the Indian Child Welfare Act (ICWA) was a response to decades of federal and state policies designed to remove Native kids from their families and cultures. ICWA was built on the principle that tribal nations exist as political sovereigns and, as such, child welfare cases involving Native children should prioritize placement with Native families, in particular those within the child’s own tribe. The law stands as a distinct marker, both in U.S.-tribal nations policy, and in the lives of those who remember what came before. Reflecting on the effects of U.S. policies on Indigenous families, Chief Judge Allie Maldonado (Little Traverse Bay Bands of Odawa Indians) toldHCN last year, “Pre-ICWA practices destroyed my family. But ICWA gave me a family.”
For the past two decades, non-Native parents, states and conservative and libertarian organizations, such as the Goldwater Institute, have mounted legal challenges to the law. The Brackeen case was brought by a group of petitioners — including several non-Native couples and the states of Texas, Indiana and Louisiana — and while ICWA was the legal target, their case was built on attacking the federal government’s ability to shape state law and policy about Indian law and policy. They also argued that the priority system ICWA employs is based on a racial, not political, classification and thus violates constitutional standards — known as the equal protection clause — set out in the Fifth and 14th amendments.
The Supreme Court, however, did not entertain these claims — at least not this time around. Justice Amy Coney Barrett wrote the majority opinion, while Justices Clarence Thomas and Samuel Alito dissented. But the court’s diverging views on the future of federal-tribal policy were apparent in a pair of opinions concurring with the decision, by Justices Brett Kavanaugh and Neil Gorsuch. Kavanaugh opened the door for a potential future legal challenge tied to the equal protection issue and the petitioners’ claim that Native people should be treated as a racial class and not citizens of sovereign nations. Meanwhile, Gorsuch, harkening back to the flourishes of his McGirt opinion, penned a history-laden concurrence that left one law professor optimistic.
To unpack the Supreme Court’s Brackeen decision and look ahead to the next steps facing tribal nations and organizations, High Country News spoke with a group of ICWA policy and federal Indian law experts. The conversation has been edited for length and clarity.
High Country News: This is a basic question to open with but feels called for given the amount of anxiety and tension expressed throughout Indian Country leading up to this decision: How significant is the Court’s decision to uphold ICWA as federal law?
Matthew Fletcher (Grand Traverse Band of Ottawa and Chippewa Indians; professor of law at the University of Michigan Law School): This is an absolutely massive opinion on multiple fronts. The main challenge, rejected by seven judges, was to congressional Indian affairs powers. This was a broadside against virtually ALL of federal Indian law. It has been a pet project of Justice Thomas now since at least 2004. He’s written five or six concurring and dissenting opinions calling for the Court to reconsider this basic tenet of the field. And, after all this time, even with the dramatic shift of the Court to the extreme right, not a single judge has ever signed on to one of his opinions. I like to think this case finally settles the matter of the grand scope of federal power in Indian affairs.
Sarah Kastelic (Alutiiq; executive director, National Indian Child Welfare Association):I cannot emphasize enough what a huge win this ruling is for Native children, Native families and the future of Native peoples. The Court’s decision affirmed that the Indian Child Welfare Act is constitutional, puts the best interests of Native kids first and is grounded in tribal sovereignty. The opposition’s argument in this case was a culmination of biased and misleading attacks on tribal sovereignty that Indian Country has been dealing with for years. With this ruling, the justices have sent a clear message that these bogus attacks have no legal foundation and will not be tolerated.
Angelique EagleWoman (Sisseton Wahpeton Dakota Oyate; director, Native American Law and Sovereignty Institute; professor, Mitchell Hamline School of Law): The Haaland v. Brackeen decision was the third by the U.S. Supreme Court on the Indian Child Welfare Act and was a strong affirmation of the U.S. Congress’ authority to enact the federal law. The majority opinion with seven justices suggests a strong adherence to the fundamental understanding of the government-to-government relationship between tribal nations and the United States, and the authority for federal law to protect tribal children and other tribal interests.
It is a wonderful full-circle moment to see the Secretary of Interior Deb Haaland, Laguna Pueblo, with her name on the most recent U.S. Supreme Court decision upholding the vitality of the Indian Child Welfare Act. This is true justice and culturally affirming when the branches of the U.S. government work together as treaty partners with a trust responsibility to tribal nations and children.
Lauren van Schilfgaarde (Cochiti Pueblo; assistant professor, UCLA School of Law): This is both a massive and minuscule decision. Brackeen upholds the constitutionality of ICWA, and thereby preserves the status quo. But until today, the threat of Brackeen seemed dire.
(The) petitioners sought to undermine Congressional power to enact ICWA and anything like it. Even more threatening, they sought to unravel the posture of tribes as sovereigns in a sovereign-to-sovereign relation with the United States. The Brackeen decision largely dismissed these challenges and upheld the long-standing structure of the federal government as the constitutionally empowered sovereign to engage with tribes on “Indian affairs.”
HCN: The effectiveness of ICWA, in practice, still often relies on the willing collaboration of state agencies. Over the past few years, as this case was winding its way through the federal court system, a number of state legislatures drafted and passed bills to create a state-level ICWA standard. Have these kinds of bills functionally changed the state systems for Native children? And how can states work with tribal nations to further strengthen the existing ICWA model?
MF: The influx of state legislatures, many of them in deep red states, adopting ICWA and otherwise supporting ICWA is huge from an optics point, perhaps showing to the conservative members of the Court that they will face no real backlash from their ideological friends if they voted to uphold ICWA. On a practice level, the statutes can be very good in dealing with specific kinds of issues that might arise in certain states. Washington, for example, includes Indian children whose parents are not yet enrolled (ICWA requires a parent to be enrolled.)
But the state ICWAs are also very helpful symbolically, making ICWA state law. In Michigan, some state judges told tribal and Indian parental advocates that ICWA was federal law and they didn’t have to follow it; that was obviously wrong, but there was little or no remedy available to deal with those types of judges. You can imagine in a red state, domesticating ICWA as state law can be a big deal.
SK: Yes, these bills have changed state child welfare systems for Native children for the better. There are now 14 states that have passed state ICWA laws, recognizing the benefits for Native children and families. State ICWA laws ensure greater understanding and investment in ICWA’s success by local and statewide leaders that participate in the legislative and implementation process of the laws. They also ensure that the requirements in the federal law are tailored to local state issues. Finally, they often put more emphasis on collecting statewide and local data that can be used to improve the system for Native kids.
States and tribes can further work together to develop ICWA courts that are able to respond more effectively to ICWA cases. (They can also) create training collaborations, where state and tribal representatives work together to train the child welfare workforce on a more complete understanding of why ICWA is important.
States and tribes can further work together to develop ICWA courts that are able to respond more effectively to ICWA cases.
AEW: As several states have enacted companion legislation to the Indian Child Welfare Act, there are often state provisions to fill in more specifics on processes and to provide greater protections. Under the recently enacted Minnesota Indian Family Preservation Act amendments, there is now a section titled, “Policy on Tribal-State Relations” that includes the following language:
“260.754(d) The state of Minnesota recognizes all federally recognized Indian Tribes as having the inherent authority to determine their own jurisdiction for any and all Indian child custody or child placement proceedings regardless of whether the Tribe’s members are on or off the reservation and regardless of the procedural posture of the proceeding.”
LvS:ICWA compliance has been a 45-year struggle. This struggle is now permitted to continue.
Domesticating ICWA into state law brings numerous benefits, including simply normalizing the law into state policy and streamlining its provisions as state norms. But state ICWAs have also done great work in expanding ICWA, in expanding engagement with tribes and in expanding child welfare protections. States can and should continue this work!
Extensive litigation resources are spent on whether ICWA should apply — states could alleviate this by injecting an assumption that ICWA should apply, and that active efforts should be the default expectation. Many of the harms felt by families in ICWA are inflicted because ICWA was not complied with at the outset, and we cannot go back in time. State ICWAs can help with this.
HCN: In his concurring opinion, Justice Brett Kavanaugh took the time to note that “the equal protection issue is serious,” and went on to lay out his belief that federal courts, including the Supreme Court, will be able to address the equal protection matter “when it is properly raised by a plaintiff with standing[.]” By my reading, it appears that Justice Kavanaugh is, if not inviting another challenge, at least gesturing to the idea that he and others on the court may still deem parts of ICWA unconstitutional on these grounds. How do you interpret the justice’s language around equal protection here?
MF:Yes, Kavanugh’s opinion definitely invites additional challenges to ICWA on the equal protection front, but as the facts of this case demonstrate, there are only a couple ICWA provisions that are subject to much challenge, and these provisions have never even been the subject of a published opinion in the lower courts.
For example, there is a serious equal protection challenge to a gaming compact in Washington – serious in that it’s being handled by Paul Clement, who is a movement conservative’s favorite litigator, but that is a one-off case that might now have legs.
LvS: Justice Kavanaugh’s concurring opinion mirrors his stated concerns in oral argument — that equal protection is a potent concern to a statute aimed at Natives, and more specifically, a statute that seemingly disadvantages non-Native prospective adoptive parents. The majority opinion largely sidesteps this issue by dismissing the claim for lack of standing, or simply, wrong court. This claim should be brought in state court.
Keep in mind, ICWA is not a single mass — but rather is a sum of discrete provisions. One provision can be held as unconstitutional while others remain good law. The court held they would not reach the merits of an equal protection challenge to ICWA’s provision regarding a hierarchy of placement preferences. In theory, this provision could be challenged in a future case that cures the current standing deficiencies, while the remaining provisions in ICWA that were upheld in Brackeen remain constitutionally sound. Justice Kavanaugh is clearly inviting such a case.
Keep in mind, ICWA is not a single mass — but rather is a sum of discrete provisions.
AEW: The majority opinion rightly noted that the non-Native prospective adoptive parents and the state of Texas had no real injury to address as the case was against the Department of Interior. The prospective adoptive parents could not show an injury by the Interior Department. Likewise, the state of Texas cannot assert an equal protection injury or stand in for state citizens to assert an injury.
Anti-tribal sovereignty sentiments have been ongoing and the Indian Child Welfare Act subject to challenge since its enactment in 1978. It is hard to imagine that the reasoning laid out in the majority opinion would bend to a new challenge on equal protection grounds by framing the issue as somehow breaking with federal law and imposing a racial classification for tribal children. This decision sends a clear signal that the federal legal standard for tribal children is a political status as members of tribal nations.
HCN: In Part IV of Justice Neil Gorsuch’s concurring opinion, on the final page, he concluded with the following lines:
“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.”
What was your reaction to reading Justice Gorsuch’s opinion? How does this decision shape your evolving analysis of the current court’s legacy on matters of tribal sovereignty?
MF: Justice Gorsuch certainly does include welcome and favorable language like this, but he rarely writes for majorities with this language. (McGirt was an exception.) One hand, it’s lovely rhetorical fodder, but on the other, it’s not operative language that could be expected to persuade other [Supreme Court] judges in the future.
LvS: My heart beamed. There are simply too many U.S. Supreme Court cases that diminish tribal sovereignty, negate tribal histories and minimize tribal interests. It is difficult not to assume a preference by the Court to see tribes disappear and a disappointment that they haven’t already. Justice Gorsuch’s words were a definitive clapback — a declaration that tribes exist, that they are a necessary and explicit component of the American legal struggle, and most poignantly, that tribes shall exist in the future. I am only saddened that no other Justice sought to join him in that Part IV.
Nick Martin is a senior editor for HCN’s Indigenous Affairs desk and a member of the Sappony Tribe of North Carolina. We welcome reader letters. Email him at nick.martin@hcn.org or submit a letter to the editor. See our letters to the editor policy.
This article appeared in the print edition of the magazine with the headline The Supreme Court upheld ICWA — now what?.
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