As readers of this newsletter know, I’ve been waiting excitedly to see how the US Supreme Court would handle a challenge to the constitutionality of the Indian Child Welfare Act. That 1978 law was intended to respect the sovereignty of tribes and defer to them when addressing placement and permanency for children of Native American descent who have suffered maltreatment and need protection. Several families involved in adoption proceedings of Native children and the State of Texas challenged the law, raising issues of congressional authority to legislate matters of “Indian Affairs” and the sovereign powers of US States to resist being told what to do by the federal government.
The verdict is in, with Justice Amy Coney Barrett, joined by the Chief Justice and five others, rejecting the challenge on both substantive and procedural grounds. A quick read of the decision (in the middle of a flight to Philadelphia) renders the following observations:
Congress has plenary authority to regulate affairs between the United States (and its constituent states) and sovereign Native American tribes and nations. While arguments were made that Congress lacked these powers and was limited to regulating “commerce” between the US and native nations in the form of “trade,” the decision soundly rejected this approach.
Federal laws still trump state laws, and the state courts (in this case, courts handling dependency and adoption cases) are required to follow federal law, including ICWA.
The challengers asked for a declaration that ICWA’s “preferences hierarchy” violated the Equal Protection Clause of the 14th Amendment. ICWA requires that in placing for adoption a dependent child who is a member of a tribe or eligible for tribal membership, a state court first consider the child’s extended family, next other members of the tribe, and next other Indian families. Foster care placements require a similar hierarchical approach, beginning with extended family and ending with residential care provided by an Indian organization. The Court rejected this argument based in part on the idea that any ruling the federal courts could deliver would not easily translate to a remedy in the State courts.
ICWA therefore stands, which will hearten those who are concerned about the destruction of the Indian family and disappoint those families who see ICWA as a barrier to their desire to give an abused child a loving, permanent home. In the broader context, this case exposes a number of significant fault lines that exist throughout our child welfare system
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First, in giving children permanency, does our system favor blood or bond? Keeping a child with a Native family may provide that child with a sense of belonging and culture. At the same time, some of the children involved in the Brackeen case had been placed with non-native foster or potential adoptive families for a long time. How will the trauma of removal from such families affect them? To the extent that ICWA encourages our state courts to keep dependent children within their own cultures and families, the law reflects what children need. As often occurs, however, the conflict between blood and bond arises when the child welfare agency has not made efforts to quickly place with family and the child has remained with a non-family foster (or non-Native foster) placement for so long that he or she has developed significant attachments with that family.
Second, this decision is a reminder that courts must respect the sovereignty of other nations. Underlying the Brackeen decision is a long line of legal scholarship emphasizing the sovereign nature of Indian tribes and nations and demanding that courts of one nation respect the jurisprudence of another. Such considerations also underlie the Hague Convention on Child Abduction, which limits the authority of one nation’s courts to determine custody issues regarding a child who is a citizen of another state and the Uniform Child Custody Jurisdiction Enforcement Act, which regulates which state (or country) has authority to enter a custody order regarding a child. We also see this issue arise often in situations involving US-born children whose parents were undocumented and deported to their home country. Too often, US courts make little effort to work with authorities in the home country to reunite those children with their parents or extended family. ICWA reinforces the principle of national sovereignty.
Brackeen is a major decision not simply because it upholds ICWA but also because it highlights these significant issues. Now that it’s been upheld, reformers might want to take a closer look at how the law works in practice. Are state child welfare agencies fully engaging with tribal authorities? How do we more quickly make those ICWA-priority placements? And if the system has not worked as intended and a child has been placed in a loving non-Native family home for a significant period of time, at what point does the child’s right to attachment trump the concept of tribal unity and preservation?