Understanding the battle over the Indian Child Welfare Act

A landmark law enacted decades ago to protect Native American people from cultural genocide is under scrutiny as legal watchers prepare for the possibility that the Supreme Court could overturn it.

Claims about the Indian Child Welfare Act lit up social media after the states of Texas, Indiana and Louisiana joined several non-Native couples in a Sept. 3 petition asking the Supreme Court to overturn the law on constitutional grounds.

"This is Texas’s way of implementing a silent genocide of the indigenous people of North America," one TikTok user said. "They will steal these children from their families and put them in gentrified neighborhoods."

The case, known as Brackeen v. Haaland, is one of the most significant challenges to the Indian Child Welfare Act in decades. The Supreme Court hasn’t agreed to take up Brackeen v. Haaland yet, but some political commentators have noted that it meets certain criteria that would qualify it for review.

Some people worry that, if this challenge is successful, it could decimate Native American families and erode communities that have fought for hundreds of years to stay alive. Others argue that the law is racially discriminatory and limits the rights of non-Native families who want to adopt. With a lot of conversation swirling about this complex and consequential case, we decided to explore what’s at stake.

Congress passed the Indian Child Welfare Act (shorthanded as ICWA, or "ick-wah") in 1978 in response to a crisis affecting Native American tribes.

Studies found that up to one-third of children were being removed from tribal homes by state child welfare and private adoption agencies. Of these children, 85% were placed outside of their extended families and tribes, even when capable relatives were willing to take them in.

These numbers were the product of over 100 years of federal and state policy, said Marcia Zug, a family law professor at the University of South Carolina. In an attempt to break up Native communities, many states forcibly placed American Indian children with white families or in abusive boarding schools, oftentimes severing them from their extended families and cultural practices.

ICWA set rules on state custody proceedings involving Native American children to prevent them from being unnecessarily removed from their families and tribe.

Tribal courts have jurisdiction over child protection cases involving enrolled citizens of the tribe. But in instances involving tribal members outside a reservation, or if a tribe doesn’t have a court, the cases are heard in state court. In these state proceedings, ICWA grants the child’s tribe and family certain rights, including the ability to participate and intervene in the case. The law also requires that social services take "active efforts" to reunify Native American families and mandates placement preferences that apply to foster care and adoption. These preferences place the highest value on extended family, followed by community members from the child’s tribe, and then other Native American families.

The flip side of ICWA protections is that it is more difficult for non-tribal families to adopt Native children. Such families must establish that placing a Native American child in their home is worth going outside of the law’s placement preferences.

The law is broadly popular among tribal governments and legal experts. They argue that it offers protection to children in foster care and acts as a safeguard against cultural genocide. Even today, Native American children still tend to be placed in foster care at twice the rate than the general population. The law also has backing from child welfare and adoption organizations, 11 of whom filed an amicus brief arguing that it exemplifies "child welfare best practices."

In fact, numerous states have enacted child welfare laws for non-Native children that mirror the protections in ICWA, wrote Zug in a law review article. If the law were eliminated, Native adoptees ironically might be easier to remove from their families than other children who are granted ICWA-like protections by state law.

However, a vocal group of ICWA critics have zeroed in on controversial instances where children were returned to their tribes after living for years with non-Native foster parents who were willing to adopt them.

Complicated custody disputes like these were what led Chippewa attorney and registered tribal member Mark Fiddler to change from an ICWA supporter to one of the law’s fiercest critics.

In over 30 years of practice, he said, he saw "countless cases" where children were removed from "stable and loving" homes after forming attachments with their adopted, non-tribal parents. In practice, he argues, ICWA does not provide enough flexibility to allow for children to be placed in non-Native homes when timely placement with Native American families could not be found.

"ICWA cases move in an alternate reality, divorced from science. In all other areas of child custody law, lawyers and judges adopt the principle that a child’s attachments to caregivers should not be severed except for the most compelling reasons," Fiddler said.

As an ideological liberal, Fiddler, who represents the adoptive families in Brackeen as co-counsel, exists as something of an outlier among the conservative organizations and attorneys general who have shored up the campaign to overturn the law. One of Fiddler’s primary allies in Brackeen v. Haaland is the Goldwater Institute, a libertarian think tank that has waged a long campaign against ICWA.

On the other side is Kathryn Fort, who runs the Indian Law Clinic at Michigan State University and currently represents the four tribes who have intervened in the Brackeen case.

In Fort’s telling, cases like the ones Fiddler describes result not from the Indian Child Welfare Act but from improper applications of the law and a "fundamentally broken foster care system."

"I’d say these are rarer cases that typically occur when the process mandated by ICWA was not properly followed," she told PolitiFact. "Ideally, if ICWA is correctly followed from the start of the process, then there are no issues with long term placements, because the tribes were involved from the start."

Fort also noted that the state of Texas was facing a decade-long lawsuit over abuses and failings in its foster care system, even as it attempted to overturn ICWA.

Complicating both sides of the argument is the fact that there is a lack of good data establishing the effect of the law on children.

The case that could soon come before the Supreme Court revolves around a white couple, Chad and Jennifer Brackeen, and the Navajo boy they sought to adopt. The boy, who was placed in their care when he was 10 months old, stayed with the Brackeens for over a year until a state court ruled that he be sent to an unrelated Navajo family, per ICWA.

The Brackeens decided to fight the ruling on several fronts. In state court, they argued that they should adopt the child, and in federal court, they joined with several other adoptive families, a powerful law firm and the attorney general of Texas to file a lawsuit challenging ICWA’s constitutionality.

The Brackeens won in state court, eventually adopting the boy. (They later filed another petition to adopt his half-sister.) The federal lawsuit, however, has slowly worked its way up through the legal system, receiving a range of contradictory rulings.

In federal district court, the lawsuit landed with a George W. Bush appointee named Reed O’Connor. The Brackeens’ lawyers argued that the preference given to Native American foster parents is racially discriminatory, both to non-Native foster parents and to Native children.

The argument contradicts one of the central, underlying premises of federal Indian law: that tribal affiliation is a political, rather than racial, classification. Due to the complexity of Native identity and the unique historical relationship between the U.S. government and the tribes, almost every law involving Native communities rests on the assumption that tribal affiliation is a political one. Nevertheless, O’Connor sided with the Brackeens, striking down ICWA as racially discriminatory. (It wasn’t the only time one of O’Connor’s decisions garnered attention. He made headlines in 2018 when he deemed the Affordable Care Act unconstitutional, a ruling later reversed by the Supreme Court.)

The federal government and the tribes quickly appealed the case to the Fifth Circuit Court of Appeals, where a panel of 16 judges reviewed O’Connor’s decision. On April 6, 2021, the judges published a 325-page ruling that confounded even seasoned legal experts.

The most significant aspect of the Fifth Circuit decision was a ruling that portions of ICWA had "commandeered" state adoption proceedings in violation of the 10th Amendment, which establishes which powers belong to federal vs. state governments.

But it also showed that the panel was split evenly on a range of important questions regarding ICWA’s constitutionality.

Legal experts generally agreed that the Fifth Circuit decision would not affect the vast majority of ICWA cases. Since the ruling was issued in federal court, it wouldn’t bind state adoption practices, said Matthew L.M. Fletcher, the director of the Indigenous Law and Policy Center at Michigan State University.

But if the Supreme Court agrees to take up the case, major changes not only to ICWA but also to all of Native American law could be in store.

The nightmare scenario for tribal representatives is that the U.S. Supreme Court agrees with the Brackeens, rules that ICWA constitutes racial discrimination and goes on to deem tribal affiliation a racial designation.

If that were to happen, Fletcher said, many of the statutes making up American Indian Law could be challenged on constitutional grounds. Laws in danger of being overturned include the Major Crimes Act, which establishes the role that the federal government plays in law enforcement on Native land, Environmental Protection Agency policies that allow some tribes to ensure that the oil and gas industry adheres to environmental regulations, and federal programs that provide services like welfare or health care to Native Americans.

The Supreme Court could agree to hear Brackeen v. Haaland in January 2022 at the earliest, Fletcher said, depending on whether any of the parties ask for a month-long extension.

Fiddler, the co-counsel for the adoptive couples, told PolitiFact that he is a strong supporter of treaty rights and tribal sovereignty but thinks that it would be a "good thing" for the courts to strictly scrutinize "Indian laws that prefer Indians over non-Indians off reservation… like all other race preference statutes."

Fletcher believes that it would be unlikely for the Supreme Court to deem the law racially discriminatory, since doing so would upend a longstanding legal regime. What’s more likely, he said, is a more narrowly tailored decision striking down portions of ICWA on the basis of the 10th Amendment’s "anti-commandeering" principle, along the lines of the Fifth Circuit’s ruling.

Such a decision would loosen the obligations of state courts to adhere to federal rulings, Fort said.

"If the court finds that there is a commandeering problem with ICWA, it will be part of a much broader movement by conservative judges really limiting the power of the federal government to pass laws that states have to follow," she said.

Instead, Fort said she hopes that the Supreme Court follows "decades of precedents, finds ICWA constitutional, and states that Congress is extraordinarily clear in the preamble of the law that the policy of this nation is to promote the health and safety of Native families and the very existence of Indian tribes." ​