The Supreme Court Kept Children’s and Tribal Rights Top of Mind

On June 15, children’s rights advocates breathed a collective sigh of relief when the US Supreme Court upheld the Indian Child Welfare Act. In the decisive, 7-2 Haaland v. Brackeen majority opinion written by Justice Amy Coney Barrett, the court affirmed ICWA’s constitutionality and highlighted the act’s importance for children, families, and tribes. The ruling is a resounding victory for tribal sovereignty, and a big win for children.

As explained in a concurrence by Justice Neil Gorsuch, joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, ICWA didn’t emerge from a vacuum, but was a “direct response to the mass removal of Indian children from their families … by state officials and private parties” that has “had devastating effects on children and parents alike” and “has presented an existential threat to the continued vitality of Tribes.”

Beginning in the late 1800s, the concurrence noted, the government abducted Indigenous children, forced them into boarding schools, stripping them of “nearly every aspect of their identity,” and exposing them to physical and sexual abuse, malnourishment, and disease. By the 1960s and 1970s, state child welfare systems separated a striking 25-35% of Indigenous children from their families.

Congress passed ICWA in 1976 in response to this dark history, mandating heightened protections against removal of Indigenous children and prioritizing placement with family, Tribe, and community. For attorneys representing children in foster care, and the judges who oversee these cases, ICWA is a cornerstone law in our practice.

Contrary to opponents’ arguments, ICWA supports the state’s focus on the “best interest” of the child. As our organizations and 29 allied children’s rights organizations explained in an amicus brief filed in this case, ICWA bolsters children’s interests by prioritizing family integrity, placement with extended family, and maintenance of community and culture. For most children, the government must make “reasonable efforts” to keep families together.

ICWA requires “active efforts” instead. In the wake of centuries of genocide, oppression, and family separation, this holds states, courts, and yes—even attorneys—accountable. The law doesn’t prohibit child removal, but does restrain us from overstepping into family and tribal life in the name of “good intentions.” As we explained in our amicus brief, ICWA is the definition of best interests for Indigenous children.

Don’t just take our word for it: individuals who have personally experienced the foster care system urged the court to support ICWA too. Research similarly demonstrates that ICWA works. When the law is properly applied, children are more likely to be reunified or placed with extended family, and less likely to age out of the system.

Had the Supreme Court disturbed ICWA, this would’ve had an immediate and catastrophic impact on over 9,000 Native American and Alaska Native children who experience foster care annually. Federal law would no longer have required agencies to engage in active efforts to keep children with parents, potentially sending children’s court cases on starkly different pathways devoid of family and cultural connections.

An anti-ICWA opinion would’ve compounded egregious rates of disproportionality and disparity—even today, the child welfare system pulls Indigenous children into foster care at a rate 2.7 times greater than the general population.

For those who work in America’s foster care system, Haaland is a crucial reminder that the best interest of all children is served through connections with family, community, and culture. Judges, attorneys, and case workers in family courts must apply ICWA with fidelity for Indigenous children.

ICWA also highlights how we can do better across the board. Racial disparities plague our child welfare system. In some cities, 60% of Black children have had some form of contact with the child welfare system. Black children are also more likely to be taken from their families and placed in foster care. Research shows similar disparities for Latinx children in other jurisdictions.

We should be making active efforts to keep these families and communities intact as well. Let’s celebrate the Supreme Court decision, adhere to the language and spirit of ICWA, and apply its values—family preservation, kin, and community—for all children.

The authors and their organizations joined a coalition amicus brief in the case of Haaland v. Brackeen.

The case is Haaland v. Brackeen, No. 21-376, U.S. June 15, 2023, court opinion.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Allison Green is the legal director at the National Association of Counsel for Children.

Jessica Feierman is senior managing director at the Juvenile Law Center.

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