The US Supreme Court Wednesday heard oral arguments in consolidated cases challenging the Indian Child Welfare Act (ICWA). The case before the court, Haaland v. Brackeen, includes challenges from non-Native adoptive parents seeking to adopt a Native child over objections from the Native community.
The court heard arguments on three issues in the case. The first question before the court was whether the non-Native adoptive parents have standing to challenge the placement provisions contained in the ICWA. The second question before the court dealt with various provisions of the act, and asked the court to determine whether the provisions violate the anti-commandeering doctrine of the 10th Amendment. The anti-commandeering doctrine bars the federal government from requiring the states to enforce federal laws. To determine this question, the court examined provisions of the act relating to the placement preferences, record-keeping requirements, minimum standards and guidance provided to the states. The third question before the court sought to resolve is whether the preference given to Native families or a native foster home are rationally related to a legitimate government interest, as required under the doctrine of equal protection.
Justices Amy Coney Barrett, Neil Gorsuch and Elena Kagan pushed back on the non-Native adoptive parents’ argument that the matter is a state issue, as opposed to federal. The justices reasoned that the federal government has long had unlimited authority over Native matters. However, Justices Samuel Alito and Brett Kavanaugh voiced concern over providing Congress unlimited power in such matters. Though standing was briefly discussed, the court appeared to accept the case on its merits.
The ICWA was enacted in 1978 after studies revealed that 85 percent of Native children removed from the home were placed outside of the Native community. The act provides states with guidance and standards for handling child abuse, neglect, and adoption cases involving a Native child. In child placement cases, the act gives preference to a member of the child’s family, members of the child’s tribe, or other Native families over non-Natives and non-relatives.
