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Tribes raise alarm as Supreme Court’s conservative justices signal they could undercut Native child welfare law

Nov. 10, 2022 Updated Wed., Nov. 16, 2022 at 6:13 p.m.

Members of tribes from across the United States rally outside the U.S. Supreme Court on Nov. 9, 2022, in support of the Indian Child Welfare Act, as the nine justices heard oral arguments in a case challenging the 1978 law.  (Orion Donovan-Smith/The Spokesman-Review)
Members of tribes from across the United States rally outside the U.S. Supreme Court on Nov. 9, 2022, in support of the Indian Child Welfare Act, as the nine justices heard oral arguments in a case challenging the 1978 law. (Orion Donovan-Smith/The Spokesman-Review)

WASHINGTON – The Supreme Court on Wednesday heard arguments in a high-stakes case that could undermine not only a decades-old law intended to protect Native American children and their communities but threatens the very foundations of federal Indian law, Northwest tribes warned.

Congress enacted the Indian Child Welfare Act in 1978 in an effort to remedy generations of harm done by the federal government and states. Indigenous children were taken from their families, first to boarding schools where they were forced to abandon their language and culture – and where many died – and later through aggressive foster care and adoption agencies.

Before the law took effect, as many as one-third of Native children were separated from their families, even when members of their extended family or community were willing to adopt them, according to research lawmakers cited at the time. During that same period, more than three-quarters of Native families living on reservations lost at least one child to the foster care system.

As a 1966 press release from the Bureau of Indian Affairs proudly announced, “One little, two little, three little Indians – and 206 more – are brightening the homes and lives of 172 American families, mostly non-Indians, who have taken the Indian waifs as their own.”

The law, known as ICWA, requires states to seek to place children with their extended family, members of their tribes or another Native family before they are placed with a non-Native family. It also provides federal support to tribes for family service programs and establishes other guidelines aimed at keeping families together.

“ICWA was passed in 1978 to protect tribal children and their cultural heritage in a direct response to decades of efforts to break apart tribal families prior to the passage of ICWA,” Jarred Michael Erickson, chairman of the Colville Confederated Tribes, said in a statement, noting that Colville tribal leaders “played an instrumental role” in the bill’s passage.

“It would be outrageous if this system to protect tribal children, which has been improved over decades now, should be thrown out only because the composition of the Supreme Court has changed,” Erickson added.

The law is being challenged by three non-Native families who have sought to adopt Native kids – joined by the states of Texas, Louisiana and Indiana – who make three different arguments that could have profound ramifications beyond the realm of family law.

The families, who are all white, first argue that ICWA unfairly discriminates against them on the basis of race.

“There was a real problem that Congress was trying to address,” Matthew McGill, the lawyer representing the families, said during the oral arguments. “But the means Congress chose are impermissible. Two wrongs do not make a right here.”

Laws that apply differently based on race are subject to greater scrutiny under the Equal Protection Clause of the 14th amendment, but the Supreme Court has long held that membership in a federally recognized tribe is a political status, not a racial identity. If a majority of justices agree with the law’s challengers, that could pave the way for legal challenges to other rights reserved for enrolled tribal members.

Second, the petitioners argue Congress didn’t have the power to pass the law in the first place, relying on a discredited interpretation of a clause in the Constitution that authorizes federal lawmakers to regulate “commerce” with tribes. Their exceptionally narrow reading of the Constitution, if applied, would revoke the power Congress used to separate Native families and later used, through ICWA, in an effort to undo that harm.

Third, they argue states shouldn’t have to uphold ICWA, under the principle that the Constitution’s 10th amendment lets Congress pass federal laws that override state laws but doesn’t force states to enforce those federal laws.

If a majority of the court’s nine justices agree with either of the first two arguments, legal scholars say, the outcome could send shockwaves through the legal foundation of tribal sovereignty. Elizabeth Hidalgo Reese, an assistant professor at Stanford Law School, wrote on Twitter that the court agreeing only with the third argument would hurt ICWA but wouldn’t have such a broad impact.

“Other parts of the law could stand but there would be a huge drop-off in enforcement,” Hidalgo Reese wrote. “This is the ‘best way to lose’ this case because its narrower and doesn’t take down the rest of Indian Law.”

The legal challenge to ICWA has been years in the making, backed by conservative legal organizations and three states with relatively small Native populations. The families have been represented for free by Gibson Dunn, a multinational law firm that also represents the energy companies behind the Dakota Access and Line 3 oil pipelines that have met resistance from Indigenous activists. That connection has raised suspicions that the petitioners’ true interest lies beyond child welfare.

“In 2022, ICWA is as important as it was 44 years ago,” Gerald Lewis, chairman of the Yakama Nation, said in a statement. “The challenge to ICWA that is in front of the U.S. Supreme Court has been mounted by a few coordinated and well-financed groups, whose aim is to undermine Tribal sovereignty all together, to further their plan to have unfettered access to Tribal land and industry. For them, this case was never about the children.”

Meanwhile, ICWA has broad support among child welfare organizations and elected officials at the state and federal level. A bipartisan group of 87 members of Congress, including Washington Democratic Sens. Maria Cantwell and Patty Murray, signed an amicus brief in support of upholding the law. So did 24 state attorneys general, including those from Washington, Idaho and Oregon.

In oral arguments on Wednesday, most of the court’s six conservatives signaled they may overturn parts of the law, such as the provision that gives members of a different tribe preference in the adoption process when children can’t be placed with their own family or tribe.

Justice Amy Coney Barrett said that provision amounts to “treating Indian tribes as fungible,” while Justice Samuel Alito suggested different tribes have little in common because, “Before the arrival of Europeans, the tribes were at war with each other often, and they were separated by an entire continent.”

The Justice Department defended ICWA along with five tribes: the Quinault, Navajo, Cherokee and Oneida Indian nations and the Morongo Band of Mission Indians. The lawyer representing the tribes, Ian Gershengorn, responded that the law is based not on cultural similarity but “on a political relationship with the United States that all tribes share.”

After the court adjourned, Fawn Sharp, vice president of the Quinault Nation and president of the National Congress of American Indians, told a crowd gathered outside she was frustrated by the three-hour oral argument.

“In every single generation, we’ve had to fight this fight,” Sharp said, adding that she was left feeling the opposing lawyers and some of the justices “do not get us.”

Fawn Sharp, vice president of the Quinault Indian Nation and president of the National Council of American Indians, addresses a crowd outside the U.S. Supreme Court on Nov. 9, 2022. The rally was held in support of the Indian Child Welfare Act, as the nine justices heard oral arguments in a case challenging the 1978 law.  (Orion Donovan-Smith/The Spokesman-Review)
Fawn Sharp, vice president of the Quinault Indian Nation and president of the National Council of American Indians, addresses a crowd outside the U.S. Supreme Court on Nov. 9, 2022. The rally was held in support of the Indian Child Welfare Act, as the nine justices heard oral arguments in a case challenging the 1978 law. (Orion Donovan-Smith/The Spokesman-Review)

“Three hours of agonizing arguments, agonizing questions, where they don’t understand the basic concept that we have inherent sovereignty and we have inherent rights to the future of every single Native child born into this generation,” Sharp said. “And they somehow believe the interests of one or two people should trump generations of our efforts to repatriate and restore our land and our people.”

Justice Neil Gorsuch, who has a history of breaking with his fellow conservatives to defend the rights of tribes, expressed frustration with the law’s challengers and suggested they were simply disagreeing with the policies Congress enacted – not proving them to be unconstitutional – and should take their complaints to the Capitol next door.

“I’m struggling to understand your argument,” Gorsuch said to McGill. “For the first half of it, I heard policy complaints. … The policy arguments might be better addressed across the street.”

But even with the support of Gorsuch, ICWA’s defenders need at least one more of the court’s six conservatives to defect.

Justice Ketanji Brown Jackson, the court’s newest member and one of its three liberals, sought to appeal to the court’s majority by invoking the idea – popular with conservative jurists – that the court’s job should be simply to interpret what the nation’s founders intended when they wrote the Constitution.

After acknowledging strong interests on both sides of the case, Jackson said, “What I’m mostly concerned about is that we might be taking it upon ourselves to weigh those interests, where really our role should be thinking about what the framers intended with respect to the scope of Congress’s authority as it regards Indian affairs and what Congress believed was necessary to protect Indians.”

In an exchange with Jackson near the end of the oral arguments, Gershengorn, the lawyer representing the tribes, said the families and states who brought the case want to undo ICWA despite not being actually harmed by the law. The family leading the case, Texas couple Chad and Jennifer Brackeen, have successfully adopted a Navajo and Cherokee boy at the center of the case after a placement with a Navajo family fell through. The Brackeens are now seeking to adopt the boy’s half-sister, who lives with them, but she is not part of the case that came before the court.

“This is a very, very difficult area of the law, as the last two or three hours have shown,” Gershengorn said. “And to decide it on the basis of hypotheticals that never arise in the real world and yet take away a statute that has made such a meaningful difference for so many children seems to me just not the way this court should be deciding questions.”

The court is expected to issue its ruling in the case, known as Brackeen v. Haaland, when its current term ends next summer.

Orion Donovan-Smith's reporting for The Spokesman-Review is funded in part by Report for America and by members of the Spokane community. This story can be republished by other organizations for free under a Creative Commons license. For more information on this, please contact our newspaper’s managing editor.

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