Upholding Native American rights


In mid-June, the Supreme Court released one of its most important decisions guaranteeing Native American sovereign rights. The ruling will have a direct impact on the Island’s Wampanoag Tribe of Gay Head (Aquinnah).

The court rejected a challenge to the constitutionality of the Indian Child Welfare Act (ICWA) in Haaland v. Brackeen. The justices combined the case with three other lawsuits concerning the placement of Native American children in adoption or foster care. The decision reflects the long-held principle that agencies and judges should always determine “the best interest of the child” in placements outside a biological family.

With a seven-to-two majority, one of the most conservative justices, Amy Coney Barrett, ruled that the ICWA was constitutional in establishing the authority of native courts alone to decide child custody matters involving native children. Writing for the court, Barrett bluntly argued that “the issues are complicated — so for the details, read on. 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.”

Passed by Congress in 1978, the ICWA was designed to block a historic practice that permitted state officials to remove native children from their families and place them with white parents. Neil Gorsuch, another conservative justice, in a concurring opinion, noted that the origins of the law were a response to government attempts to obliterate Native American culture. 

Government officials have long forced native children to assimilate to white culture and society. Gorsuch recounted over 150 years of how federal and state governments engaged in the practice, initially through placing these children in boarding schools and then with white adoptive or white foster parents. In his book, “Education for Extinction,” historian David Wallace Adams notes that by 1926, 83 percent of all native children were forced to attend government boarding schools. The goal? To undermine their native heritage, language, and culture, and to destroy their “savagism.”

As the court’s strongest supporter of Native American sovereignty, Gorsuch wrote that “in all its many forms, the dissolution of the Indian family has had devastating effects on children and parents alike. It has also presented an existential threat to the continued vitality of tribes — something many federal and state officials over the years saw as a feature, not as a flaw.”

The seizure of these children, and compulsory attendance in boarding schools, ended in the 1960s, and adoptions and foster care became the key element of assimilation. The work toward thwarting this practice dates to that time, when an attorney, Bertram Hirsch, discovered the government’s first family separation policy in North Dakota involving native children. Christie Renick, a journalist focusing on families and parenting, notes that Hirsch discovered “child welfare workers forcibly removing children from family members and placing them in white homes, sometimes out of state. One grandmother had even been jailed after refusing to give up her grandchildren.”

Renick states that “Hirsch’s research found that somewhere between 25 and 35 percent of all American Indian children had been placed in adoptive homes, foster homes, or institutions. Around 90 percent of those children were being raised by non-Indians. Many would never see their biological families again.” Through his efforts, and those of the Association of American Indian Affairs, for which he worked, Congress passed the ICWA “to keep Indian children connected to Indian families.”

The ICWA requires that if Native American families are unable to provide for their children, and if the child is living on tribal land, the child must be placed with a member of their extended family. Barring that, another member of the tribe would be eligible. If that were not possible, the child could go to “other Indian families.”

The problem is what happens should the child’s family not reside on tribal land. A Texas couple, Jennifer and Chad Brackeen, adopted a boy whose mother is Navajo and father Cherokee, with the agreement of the biological parents, who did not live on a reservation. Tribal leaders objected, but finally agreed when the tribal placement failed to materialize. A few years later, the couple wanted to adopt the boy’s sister. The biological mother wanted her placed with her great-aunt, who resided on a reservation.

Texas supported the Brackeen family, arguing that the law unconstitutionally intrudes on states’ rights. The 10th Amendment prohibits Congress from passing laws that states must enforce. This is known as “the anticommandeering doctrine.” But Barrett rejected that argument, because it contained “a fundamental flaw”: The law binds the state but also, she wrote, “any party.” It therefore sweeps “in private individuals and agencies, as well as government entities.”

Justices Clarence Thomas and Samuel Alito filed dissenting opinions. Thomas wrote that child welfare cases are solely state responsibilities, and therefore declared that the ICWA is unconstitutional. Alito agreed, and added that Congress possesses broad power to “regulate Indian affairs,” but that power “does not extend” to placing children in homes.

John Echohawk, the director of the Native American Rights Fund, noted that the “decision affirming the constitutionality of ICWA is a major victory for tribes, tribal families, and tribal children, and it should put an end to the challenges to ICWA and the broader challenges to tribal sovereignty.” 

Perhaps the decision will firmly establish the ICWA as part of the constitutional landscape of the U.S., at least until a majority of justices who believe otherwise serve on the court.


Jack Fruchtman, who lives in Aquinnah, is preparing a fourth edition of his book, “The Supreme Court and Constitutional Law.”