Indian Child Welfare Act to remain intact


“The Constitution does not erect a firewall around family law.”

— Justice Amy Coney Barett

Haaland v. Brackeen

“Today’s decision is a major victory for Native tribes, children, and the future of our culture and heritage.”

— Statement from leaders of the Cherokee, Morongo, Oneido, and Quinault Nations

In the 1960s and 1970s, children’s services actions involving Native American children, particularly those in Oklahoma, Arizona, and other states with large Native populations, saw a massively disproportionate percentage of those children being removed from their homes.

In cases involving Native American children, nearly one third of the kids who were the subject of those cases were not only being removed from their parents, but they were being placed outside of the Indian nations in which they lived, and with families who were not members of their tribes.

Those startling numbers led Congress to enact legislation in 1978 that came to be known as the Indian Child Welfare Act or ICWA. The Act provides a number of safeguards to keep Native American children with their tribes or reunite them with a tribe to which they might belong or have eligibility to belong.

The law says that if the child or children involved in the case are being removed from a home that is within Native American lands, then the Native courts have exclusive jurisdiction over those cases. Those cases should be heard by tribal judges in tribal courts and not in state courts that surround the tribal lands. If a child with Native American heritage becomes the subject of an action that originates outside of tribal lands, the Native American tribe has the authority to intervene in that case in state court. In those cases, the tribe can participate as a party, file motions, be heard as to the motions or requests of other parties, and generally fully participate in the case. And if the child is to be placed in foster care or otherwise removed from the child’s home, the Native American tribe, native custodian, or parent may petition the court to transfer the case from the state court to the tribal court.

The federal law also establishes a heightened standard in cases involving Native American children. Most state laws require that the local child welfare agency be making “reasonable efforts” to reunify the child with their parent or parents. But ICWA requires that the local agency be making “active efforts” to reunify.

Over the years, the act has seen several major legal challenges. In 2014, a sharply divided Supreme Court held that some of the act’s language did not apply in cases in which the parent with Native American heritage had never been the child’s custodian. Five years ago, the High Court declined to get involved in a case involving the prospective adoption of a child with Native American heritage by a non-native couple. And in 2018, a federal court in Texas struck down several major provisions of ICWA. The case was brought by several foster parents, and the states of Indiana, Louisiana and Texas. Most drastically, the federal court ruled that the basis used to determine eligibility — parental ancestry — was a stand-in for race, and that the federal government needed to meet a “strict scrutiny” standard. In so doing, it echoed language from a two decade old Supreme Court case that dealt with the rights of Native Hawaiians.

The Texas court also found that the act impermissibly exercised federal power over the states. It found that several provisions of ICWA commanded the individual states to alter their state laws. At the time of the decision, the defendants promised to appeal. Writing about the case at the time, I said that an appeal, “sets up a possible Supreme Court showdown in a few years.” That showdown came earlier this term, and on Thursday of this week, the Supreme Court dramatically, and conclusively, brought the matter to an end, leaving ICWA entirely intact.

In a 7-2 decision authored by Justice Amy Coney Barrett, the High Court ruled that there is nothing in the Constitution that makes domestic relations or family law the exclusive realm of state legislation, that Congress has always exercised authority over legislation relating to Native American tribes, and that the federal government has long been held to have authority to require state courts to enforce federal law.

Only justices Alito and Thomas dissented. And Justice Gorsuch, long seen as friendly to Native American nations, penned a lengthy concurring opinion, joined by justices Sotomayor and Jackson, outlining the history of federal relations with Native tribes. (In a decision issued the same day, which found that federal bankruptcy law applied to Natives tribes in the same manner as it applied to foreign nations, only Gorsuch dissented, siding with the tribes.)

The decision will have a major impact on child welfare cases but, as Gorsuch said in his dissent, it’s larger impact may be that it “goes a long way toward restoring the original balance between federal, state, and tribal powers that the Constitution envisioned.”

David Hejmanowski is judge of the Probate/Juvenile Division of the Delaware County Court of Common Pleas, where he has served as magistrate, court administrator, and now judge, since 2003. He has written a weekly column on law and history for The Gazette, a sister paper of the Galion Inquirer, since 2005.

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