By The Indian Child Welfare Act case, Haaland v. Brackeen, has been in the hands of the Supreme Court since February 2022 and the decision could affect the future of Native American rights.
The Indian Child Welfare Act, enacted in 1978, was an attempt to stop the prolonged action of allowing Native American children to be removed from their home and put in non-Native families and institutions.
ICWA sustains the rights of tribal nations when it comes to child welfare. It also supports family integrity and stability and keeps Native American children connected to their tribes and culture.
Throughout history ICWA has been interpreted and used inconsistently by governmental bodies throughout the United States. The federal government has even set in place guidelines to better the way ICWA is implemented through the U.S.
“What happened in this case is that a bunch of parties joined in because they all had similar interests,” said Alex Lohman, CSULB political science professor and active attorney.
Lohman said she has followed the case because she was a lawyer for foster youth for about 10 years. In her job, Lohman said she dealt with ICWA all the time. When kids had Native American ancestry, Lohman had to work with the court and involve tribes to comply with ICWA.
Haaland v. Brackeen was first heard by the the Federal District Court in Texas in 2018. The Brackeens claimed that ICWA created placement preferences for Native American children and this racial preference violated the Equal Protection Clause under the Fourteenth Amendment.
They wanted to adopt the second child of the Native American women they had already adopted a child from. However, ICWA told them they had to set priorities for family members of the child’s tribe.
The case has four petitioners and four respondents. Each party has their own interest, some are similar, but they all joined after Haaland v. Brackeen.
In the Texas Federal District Court, the ruling held that ICWA violated the Equal Protection Clause under the Fourteenth Amendment because it made decisions based on race.
“A lot of scholars disagree with that because they don’t view Native American ancestry as a race-based classification ancestry,” Lohman said. “In terms of the law, it is a political lawsuit.”
By January 2019, the defendants, the federal government and Native tribes, appealed to the Fifth Circuit Court of Appeals. In April 2021, the court decided the law was constitutional. The decision said that the law does not operate based on race and did not violate the Equal Protection Clause.
The court of appeals raised another issue on whether ICWA violated the Tenth Amendment, which gives states the power to implement laws without federal government interference. If the federal government forces states to implement a law, the government could violate the right of the state to control their own laws because of the Anti-Commandeering Doctrine.
In September 2021, the US Department of Justice, tribal nations, Texas and the individual plaintiffs asked the Supreme Court to review the Fifth Circuit’s decision. By February 2022, the court accepted the petitions and took the case.
Nonetheless, the Court finally heard the case in November 2022.
The court has yet to decide and Lohman said that, so far, the case is very unclear. She said many are worried because if the Supreme Court finds ICWA unconstitutional, it could create a domino effect, resulting in others wanting to go after laws related to lands, tribal casinos and obtain the benefits enjoyed by Native American tribes.
Most importantly, the decision could impact Native American children. In history, the U.S. is known for taking Native American children and erasing their culture, religion, families and overall identity. If ICWA is ruled unconstitutional, the U.S. could be backing away from the responsibility of the “general trust” duty they have to tribes.
“I think it is really inappropriate for us to be making those judgments,” Lohman said. “When it comes to American Indian tribes, they are their own sovereign nations.”
