The National Congress of American Indians has identified November as Native American Heritage Month, following up Indigenous Peoples’ Day which was held on October 10 this year.  

During research on Native American Heritage Month, we found a current U.S. Supreme Court case related to discrimination that would have a negative impact on Native Americans.  

We think that this case is important to bring focus to Native American rights to their own culture, especially related to keeping Native American adopted children within their tribe, or at least, within the Native American larger community.  

ICWA is constitutional. A quick guide to see if a case is viable may help another Native American adoption case.
Photo provided by Narf.org

On Nov. 9, the Supreme Court heard arguments in Brackeen v. Haaland to decide whether to overturn the Indian Child Welfare Act, commonly referred to as ICWA, because of a lawsuit related to a 10-month-old baby that a Texas non-Native American couple wanted to adopt in June 2016.  

The adoptive couple wanted to be considered as adoptive parents for this Native American 10-month-old without the restrictions of the ICWA for themselves or others.  However, the Native American communities felt this violated their rights and the ICWA. The Native American Rights Fund website noted that “at the lower court in Brackeen v. Haaland, 486 Tribal Nations, 59 Native organizations, 31 child welfare orgs, 26 states + DC, and 77 members of Congress offered support for ICWA.” 

The ICWA is a 1978 federal law that protects Native American children by giving them the right to stay with Native American parents when being adopted.   “The law (ICWA) was enacted more than 40 years ago after a congressional investigation found that public and private agencies had removed a third of all Native children from their homes and placed most of them in institutions or homes with no ties to American Indian tribes,” according to Nina Totenberg’s NPR story on the case. 

After looking at the case, we think it is selfish for a couple to want to adopt a baby out of their traditions and Native community. The fact that one-third of Native American children have already been taken away from their traditions historically just goes to show how easily traditions are disrespected. Their right is to keep their culture as a people group. Looking back into history, they have already lost so much of their culture. Why take more? 

Controversy timeline 

In 2018, a Texas federal district court decided that ICWA goes against the U.S. Constitution, partly under the Equal Protection Clause. “This decision was in many ways unprecedented ― never before has a federal court found ICWA unconstitutional, and the Supreme Court has consistently rejected arguments that federal Indian statutes violate the Equal Protection Clause or exceed Congress’ authority under the Indian Commerce Clause,” reported the Native American Rights Fund. 

Then, in 2019, the court case made it to the Fifth Circuit, a last step before the U.S. Supreme Court. A three-judge panel reversed the 2018 decision and found that the ICWA had the right to apply to adoptions and they recognized tribal governments have special relations as a recognized sovereign government.   

Then, the three-judge panel was reviewed by an “en banc” panel, which is the entire circuit court, who found that sections of the ICWA were possibly unconstitutional and also the term “Indian child” in ICWA’s definition of “Indian child” did not operate on the basis of race. This replaced the Fifth Circuit’s previous decision. 

Then, as the Native American Rights Fund website explained, “In September 2021, the U.S. Department of Justice, intervening tribal nations, and Texas and individual Plaintiffs all formally asked the United States Supreme Court to review the Fifth Circuit’s en banc decision. In February 2022, the Supreme Court granted all four petitions and consolidated the case.”  

Nov. 9 SCOTUS hearing 

We reviewed the Supreme Court’s transcripts from the hearing on Nov. 9 of this month. The counsel for Texas, Judd E. Stone, solicitor general of Austin, Texas on behalf of Texas, said that a Texas agency budget handling ICWA cases would stand to lose a substantial amount of Medicare and Social Security funding if they didn’t comply with the ICWA mandatory language. Of the $410 million that Texas receives related to the ICWA, 42 percent would be lost.  

The amount of money that would be lost is significant considering that the penalty was set so high after Native Americans lost about one-third of Native children to adoption in non-Native families or facilities.  

This penalty gives the state an incentive to make sure Native American children are kept within their Native communities. This penalty gives the ICWA power.  

The case that SCOTUS heard on Nov. 9 has the potential for far-reaching impact beyond Texas. The right of tribal governments to stand is somewhat at risk. The Native American Rights Fund and the Native American Congress have expressed serious concerns related to this.  

Our opinion 

As long as the tribe will take care of tribal children in a way that any child deserves to be cared for, the child deserves to stay within the tribe to keep a sense of their traditions and community, especially considering that these children under the ICWA have already been displaced from their birth families. If we don’t allow tribal governments to stand with power, they might disappear. This is wrong because it is almost like erasing their race. As a nation, we have tried to fix errors like this in the past.  

The court has until June 30, 2023 to make its decision, according to Nina Totenberg’s report for NPR.  

To read transcripts of the case, see the Consolidated Oral Argument for the case at C-Span.  


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