US Supreme Court upholds Indian Child Welfare Act (ICWA)

(NATIONAL) The U.S. Supreme Court voted to overturn a Texas federal court’s decision that the Indian Child Welfare Act (ICWA) was unconstitutional in a 7-2 decision on Thursday.

The court also rejected the ruling that ICWA placed undue burdens on states and was race-based. 

“For centuries tribal nations have been fighting to govern as sovereigns to protect our own, and the very core of that is being upheld by this decision,” Muscogee Creek Nation (MCN) Principal Chief David Hill said. “Today’s decision strengthens our ability to protect the most vulnerable among us.”

“The Brackeen ruling acknowledged what Tribal Nations have known all along: that the Indian Child Welfare Act does not exceed federal authority; does not infringe upon state sovereignty; nor does it discriminate upon the basis of race,” MCN Attorney General Geri Wisner said. “Today is a good day for our Indian Nations, families and children.”

ICWA was enacted in 1978 to stop the flood of Native children being removed from their homes and adopted into mainly non-Indian families. Up to 35 percent of all Native children had been removed from their homes and 85 percent of them were sent to non-Indian homes before ICWA became law, according to the National Indian Child Welfare Association (NICWA).

Experts estimated hundreds of thousands of Native American children were taken from their homes and placed in boarding schools or with non-Native families before Congress passed ICWA, which gives preference to a child’s extended family, tribal members, or other Indian families in adoption and fostering. 

MCN Children and Family Services Administration Director Michelle Bender said they strongly believe in the importance of protecting and preserving the Nation’s strongest resources: their children and families. 

“We are pleased and applaud today’s ruling,” Bender said. “The Nation believes ICWA is constitutional, necessary, and inherently upholds the sovereignty of the Nation by keeping Native children and families together. With upholding ICWA, the United States Supreme Court continued to uphold the United States’ promise to protect Native American children and families.”

President Joe Biden said the decision maintains a "vital protection for tribal sovereignty and Native children” and that “the history of the nation looms large over today’s decision," also referencing how Native children were stolen from the arms of the people who loved them in the not-so-distant past.

Matthew D. McGill argued the case on behalf of the non-Native families who said Native preference for adoption is unconstitutional. 

He said his primary concern was for a 5-year-old girl who has "for nearly her whole life" been a member of a non-Native family.

"The court did not address our core claim that ICWA impermissibly discriminates against Native American children and families who wish to adopt them, saying it must be brought in state court," McGill said. 

McGill said he is planning to do so.

Read the Supreme Court's full decision here.