Supreme Court to hear case tribes fear is a threat to sovereignty

The U.S. Supreme Court has agreed to take up a dispute over a 44-year-old law that prioritizes placement of Native children in the foster system with extended family or Native communities whenever possible.

The justices will review lower court decisions that ruled key aspects of the Indian Child Welfare Act of 1978 unconstitutional after Texas and other opponents claimed the law is based on race.

In October nearly 200 tribes, including the Walker River Paiute Tribe in Nevada, joined an amicus brief to the Supreme Court in support of ICWA, arguing the law is not based on race but on the rights of tribes as sovereign nations and political entities.

President Joe Biden’s administration and several tribal nations defending the law in court maintain that the law draws on political classifications that are backed by the high court’s precedent.

Tribes in Nevada say challenges to ICWA will have far-reaching consequences that will be felt for generations.

Amber Torres, chair of the Walker River Paiute Tribe, called efforts to dismantle ICWA an attack on tribal sovereignty and “a blatant slap in the face.”

“This is their time to get it right and make ICWA the law of the land and put it to bed,” Torres said. “Nobody knows what better to do with our Indian children than Native people.”

Congress enacted ICWA in response to the wholesale removal of Native children from their families by state and private child welfare agencies at rates far higher than those of non-Indian families, often without due process.

States and the federal government continued to forcibly remove Native children from their families by enlisting them in boarding schools. Nevada has its own history of separating Native children from their homes and families in the Stewart Indian School, a boarding school many Native children were forced to attend.

Nationwide, Native children are still on average nearly three times as likely to be in state foster care systems. The National Indian Child Welfare Association found that in 10 states Native children are more than three times as likely to be removed to foster care, the highest being Minnesota, where children were placed in foster case 16 times more than non-native children.

Torres has seen Native children placed in non-native homes reach out to their extended families as adults looking for their cultural roots and history, often in economic distress and excluded from federal benefits they have a right to as Native Americans.

“We have ICWA in place for a reason,” Torres said. “When a child is taken from their home they get to go to their next of kin; their aunties, their uncles, their grandmas. They stay within their family circle and that’s important.”

The law ensures that federal and state governments recognize and protect tribes’ right to governance over all matters that affect their citizens due to their federally recognized status as sovereign nations, including matters that affect their children and families.

“As Native people that’s what we do. We take our relatives in and we bring them up. We take on that responsibility as a sovereign nation,” Torres said. “To take that away from Indian Country would be unacceptable.”

Advocates for ICWA worry that dismantling the law would extend beyond child welfare issues, and establish precedent for undermining the foundation of federal Indian law which views tribes as political entities rather than racial groups.

Tribal advocates warn that if key aspects of ICWA are overturned it could not only eliminate protections for Native children, but also open the door to multiple legal challenges designed to undermine tribal protections, from environmental provisions to the Indian Gaming Regulatory Act governing tribal casinos.

The case, Brakeen vs. Haaland, stems from a 2018 Texas federal court decision that ruled ICWA unconstitutional for race-based discrimination against non-native families in the placement of Native children after a Texas couple seeking to adopt a Navajo child filed a federal lawsuit.

That decision was later reversed by a Fifth Circuit panel of three judges, before being taken up by all 17 judges on the Fifth Circuit in a rare “en banc” convening, which resulted in a complicated and muddled final decision.

Four petitions challenging different aspects of the en banc Fifth Circuit decision on ICWA were later filed at the Supreme Court by the Biden administration, the state of Texas, four tribal nations, and several non-native parents.

The case has drawn the attention of powerful interest groups including the Goldwater Institute, a conservative think tank that backed the 2018 lawsuit in Texas. The Goldwater Institute has been involved in 13 cases challenging ICWA in the last six years.

Counsel for the Texas family who filed the lawsuit against ICWA also includes the massive international law firm Gibson, Dunn & Crutcher, according to the court petition. That firm represented the Dakota Access pipeline, a multibillion-dollar project estimated to carry half-a-million barrels of oil per day.