The Supreme Court Leaves Indian Child Welfare Act Intact

June 15, 2023

Updated June 15, 202312:24 PM ET


Nina Totenberg


Meghanlata Gupta

Light illuminates part of the Supreme Court building in Washington on Nov. 16, 2022.

Patrick Semansky/AP

The U.S. Supreme Court, defying predictions, upheld the Indian Child Welfare Act on Thursday, though it left unresolved a key argument raised by the challengers.

By a 7-2 vote, the court upheld the law's preferences for Native tribes when American Indian children are adopted, ruling that the law does not impermissibly impose a federal mandate on traditionally state-regulated areas of power.

But when it came to the the preferences for placing children in Native foster and adoptive homes — whether the law unconstitutionally discriminates based on race — the court did not decide the issue because it said that the challengers, here prospective adoptive parents and the state of Texas, had not suffered a concrete harm and could not sue.

"The bottom line is that we reject all of petitioners' challenges to the statute, some on the merits and others for lack of standing," Justice Amy Coney Barrett wrote in her majority opinion.

In his dissent, Justice Samuel Alito, who was joined by Justice Clarence Thomas, wrote that the court "identifies what is most important about these cases: they are 'about children who are among the most vulnerable.' But after that opening nod, the Court loses sight of this overriding concern and decides one question after another in a way that disserves the rights and interests of these children and their parents, as well as our Constitution's division of federal and state authority."

ICWA has stood as a landmark law since it was enacted over 45 years ago after a congressional investigation found that over one-third of all Native children had been removed from their tribal homes and placed with non-Indian families and institutions with no ties to the tribes.

The court rejects all of the challenges to the Indian Child Welfare Act, "some on the merits and others for lack of standing," Barrett wrote.

The law was challenged by Chad and Jennifer Brackeen, alongside other non-Native prospective adoptive couples. They argued the law violated the Constitution by discriminating on the basis of race and forcing the state to carry out federal mandates. The high court rejected these arguments, citing over a century of precedent that classifies Native Americans as a political, not racial, group.

Thursday's decision is viewed as a win to Native American tribal leaders and advocates who argued the law safeguarded Native children and tribal communities.

Background on the 1978 law

Congress, after extensive hearings, found that public and private agencies had taken hundreds of thousands of American Indian children from their homes, sometimes by force. These agencies then placed the children in institutions or with families that had no tribal connections.

The tribes saw these actions as a threat to their very existence, and Congress agreed. In response, Congress passed the Indian Child Welfare Act of 1978, known by the acronym "ICWA."

Here are the major Supreme Court decisions we're still waiting for this term


Here are the major Supreme Court decisions we're still waiting for this term

ICWA established minimum federal standards for removing Native children from their families and required state courts to notify tribes when an American Indian child is removed from his or her home outside of a reservation. It also implemented a framework for foster and adoption placements that is at issue in this case. The framework requires first preference be given to a member of the child's extended family, then other members of the tribe, and if neither of those is available, a home with a different tribal family.

But in the case before the court, the state of Texas and several families who are adopting American Indian children challenged the law. They contended it amounts to an unconstitutional racial preference, and that the federal law impermissibly intrudes on state autonomy.

The Biden administration, like past administrations of both political parties, defended the law. Citing a string of precedents dating back to the early days of the republic, the government said that ICWA draws classifications based not on race but on connections to tribal groups. And under the Constitution, those tribal groups are separate sovereign nations, essentially a political group.

But the lawyer for the family at the heart of the case contended that the law "deprives children of an individualized assessment of their own best interests." The tribes say that the best interests of the child are being considered.

On Thursday, the court agreed with the tribes, leaving the law intact.

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