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Supreme Court Affirms Native American Community Should Have Priority in Children Custody Cases

Three couples attempting to adopt or foster Indian children argued the Indian Child Welfare Act was unconstitutional

A federal law prioritizing keeping Native American children with their relatives and tribes has been upheld by the United States Supreme Court.

The Indian Child Welfare Act was enacted in 1978 in response to the practice of separating Native Americans from their families or people affiliated with their communities. The law establishes a hierarchical preference that must be observed during custody rulings involving Native American children. The children must be placed with Indian families or institutions of any tribe – even if the child does not have any ties to the tribe – before unrelated non-Indian institutions or people. Any party seeking to remove a child from a parent or Indian caregiver to prevent serious physical or emotional harm is required to meet a “heighten burden of proof” and prove efforts have been made to prevent the “breakup of the Indian family.”

In a 7-2 decision, the Court ruled the IWCA will remain intact. The majority found that Congress did not exceed its authority when enacting the law. 

“The bottom line is that we reject all of petitioners’ challenges to the statute, some on the merits and others for lack of standing,” wrote Justice Amy Coney Barret for the majority.

Justices Clarence Thomas and Samuel Alito dissented and affirmed that Congress had violated the boundary of its authority.

“I am sympathetic to the challenges that tribes face in maintaining membership and preserving their cultures. And I do not question the idea that the best interests of children may in some circumstances take into account a desire to enable children to maintain a connection with the culture of their ancestors,” wrote Alito. “The Constitution provides Congress with many means for promoting such interests.”

“But the Constitution does not permit Congress to displace long-exercised state authority over child custody proceedings to advance those interests at the expense of vulnerable children and their families,” he continued.

In 2018, three non-Indian couples who were trying to adopt or foster children with Indian ancestry challenged the law in a federal district court in Texas. The couples argued that the law is an overstep of Congress’s constitutionally established boundaries, violates states’ rights and imposes race-based discrimination in violation of the Consitution. The district court sided with the plantiffs, sparking outrage among many Native American groups and institutions. The court’s ruling was subsequently reversed in 2019 by a three-judge panel from the Fifth Circuit, who found the ICWA was necessary to ensure the welfare of Native American-descended children.

After years of legal back and forth, the plaintiffs, Texas, the U.S. Justice Department and several tribes asked the Supreme Court to take up the case. 

Attorneys representing the families stated during oral arguments in November 2022 that Native American children were treated differently under the law in violation of the 14th Amendment and that the policy contradicts the “best interest of the child” standard normally applied in family court matters. Additionally, the plantiffs’ attorneys argued that Congress did not have the right to regulate Indians everywhere, per the SCOTUS Blog.

In his concurring opinion, Justice Neil Gorsuch disagreed with this claim. He wrote:

Our Constitution reserves for the Tribes a place—an enduring place—in the structure of American life. It promises them sovereignty for as long as they wish to keep it. And it secures that promise by divesting States of authority over Indian affairs and by giving the federal government certain significant (but limited and enumerated) powers aimed at building a lasting peace. In adopting the Indian Child Welfare Act, Congress exercised that lawful authority to secure the right of Indian parents to raise their families as they please; the right of Indian children to grow in their culture; and the right of Indian communities to resist fading into the twilight of history. All of that is in keeping with the Constitution’s original design.

Native American groups celebrated the Court’s decision.

We are overcome with joy that the Supreme Court has upheld the Indian Child Welfare Act (ICWA), which is widely regarded as the gold standard of child welfare,” said the Native American Rights Fund in a statement on June 15. “One thing is certain: ICWA is crucial for the safety and well-being of Native children and families and the future of Native peoples and Tribal Nations. The positive impact of today’s decision will be felt across generations.”

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