In a 7-2 ruling, the Supreme Court of the United States upheld the Indian Child Welfare Act of 1978, which provides precedence and priority to Native American tribes over non-Natives regarding Native children’s placement in foster or adoptive care. The law states that whenever a Native child is placed up for adoption or foster care, they must be placed with an extended family member, another family within their particular tribe or a family within a different tribe. Only after exhausting those three steps could a Native child end up with a non-Native family.
The Supreme Court has preserved a federal law giving preference to Native American families when it comes to adopting Native children in foster care. Here's what it means, and how tribal leaders are reacting. https://t.co/FGWY9kqjM1
— The Associated Press (@AP) June 16, 2023
Justice Amy Coney Barrett wrote the majority opinion, joined by Chief Justice John Roberts and Justices Sonia Sotomayor, Elena Kagen, Neil Gorsuch, Brett Kavanaugh, and Ketanji Brown Jackson. Gorsuch and Kavanaugh each authored their own concurring opinions, while Justices Clarence Thomas and Samuel Alito dissented.
The law was challenged on several grounds, including how the ICWA violated the 10th Amendment’s “anti-commandeering” doctrine and the law was racially discriminatory against non-Natives. The federal government and several Native American tribes who supported the law defended it against these claims.
Congress has the authority to “regulate Commerce” and “affairs” with Native tribes. The ICWA does not violate the 10th Amendment’s “anti-commandeering” doctrine, even as it places certain federal requirements and minimum standards on state courts and governments, according to the majority opinion.
Justice Gorsuch used his concurring opinion to defend the ICWA’s underlying premise of keeping Native children with their own or similar Native tribes. In the context of this nation’s long history of racial discrimination and abuse against Native tribes by the federal and state governments, particularly with regard to decades of concerted and cruel official efforts to remove Native children from their tribes in order to break familial and tribal bonds.
Justice Kavanaugh concurred with Barrett’s overall decision but took issue with the avoidance of the racial discrimination claims. He asserted that they were “serious” and worthy of the Court’s consideration.
The several Native tribes who had joined with the federal government to defend the law in this case issued a statement praising the ruling as a “major victory for Native tribes, children, and the future of our culture and heritage,” as well as “a broad affirmation of the rule of law, and of the basic constitutional principles surrounding relationships between Congress and tribal nations.”
This decision affirms the sanctity of parental rights and acknowledges the importance of preserving the cultural heritage and traditions of Native American tribes. Justice Thomas and Justice Alito’s dissents further highlight the need for state sovereignty and governmental authority in the nation.