SCOTUS Ruling Preserves Best Interests Of Native American Children And Families

• Jurisdiction: United States,Federal
• Law Firm: Shipman & Goodwin LLP
• Subject Matter: Government, Public Sector, Litigation, Mediation & Arbitration, Constitutional & Administrative Law, Trials & Appeals & Compensation
• Author: Ms Joette Katz
• Published date: 26 June 2023

Last week the Supreme Court of the United States issued one of its most important decisions of the year, Haaland v. Brackeen, in which the court affirmed the constitutionality of the Indian Child Welfare Act (ICWA), a federal law that protects the well-being and best interests of Indian children and families. This was the U.S. Supreme Court's first ruling on ICWA since Adoptive Couple v. Baby Girl, the 2013 decision in which a 5-4 court ruled that a Cherokee father couldn't rely on ICWA to block his biological child's adoption. Since that time, the structure of the Supreme Court has changed, and eyes were on Justice Neil Gorsuch. In my view, he did not disappoint.

But first some history. Congress enacted ICWA in 1978 to re-establish Tribal authority over the adoption of American Indian and Alaska Native (AI/AN) children. Its goal was to strengthen and preserve Native American family structure and culture. Legislative history showed that between 25% and 35% of all Native children were being removed from their homes by state child welfare and private adoption agencies, and that of those, 85% were placed with non-Native families, even when fit and willing relatives were available. ICWA was intended to be a safeguard that requires placement cases involving Native American children to be heard in tribal courts, and when possible, permits a child's tribe to be involved in state court proceedings.

It also requires testimony from expert witnesses who are familiar with Native American culture before a child can be removed from his or her home. If a child is removed, either for foster care or adoption, the law requires that Native American children be placed with extended family members, other tribal members, or other Native American families prior to placement in non-Indian homes. In short, ICWA is considered to be a procedural safeguard to "protect the best interests of Indian children and to promote the stability and security of Indian Tribes and families." 25 U.S.C. ' 1902. ICWA has helped tens of thousands of Indian children and families stay together despite their involvement in state child welfare systems.

The Bracken case, which centered on a child whose biological parents are Navajo and Cherokee but were placed in a foster home with a white couple in Texas, became significant when Texas, Indiana, Louisiana and individual plaintiffs sued the federal government in the U.S. District Court for the Northern District of Texas, arguing that ICWA and its...