Supreme Court of the United States (SCOTUS) Upholds Indian Child Welfare Act (ICWA) Despite Challenge Based on Reverse Discrimination

By StrongHearts Native Helpline

Setting the Stage 

It is important to recognize that when Native people speak about domestic violence and sexual violence, “anti-Indian” policy, or any other form of colonial violence, there is a great deal of hesitation because all too often those who should listen don’t, and those who listen dismiss the unspeakable truth about Native American History. 

“Our relatives have experienced so many forms of trauma due to harmful interventions caused by federal and state policies. As a result, many of our children were lost—they were taken and, in many cases, never returned,” said Lori Jump (Sault Ste. Marie Chippewa/ Anishinaabe), CEO, StrongHearts Native Helpline. 

“ICWA was the first of many attempts to restore balance in the justice system—justice for Native children who we now know were being stolen, tortured and murdered.” 

Haaland v. Brackeen 

The case of Haaland v. Brackeen is one of several custody cases wherein non-Native people wish to adopt Native children and, for the most part, achieve that goal—as did the Brackeens. But, the Brackeens didn’t stop at adoption because they garnered attention and sponsorship from special interest groups: Corporate lawyers, adoption agencies, and GOP billionaires, who held that ICWA was a form of race discrimination. 


Supreme Court Ruling 

On June 15, the SCOTUS upheld ICWA to protect Native children. The majority (7-2) in favor of ICWA used the words of advocates, mothers, and grandmothers who testified before Congress in the ’70s. Their voice, work, and plea were to keep their children with the families and support systems where they were born. 

Before ICWA, approximately one-third of Native American/Alaska Native children were taken from their homes by state welfare agencies and private adoption agencies, and a shocking 85% of those children were placed outside of family or community care with non-Native people.

What is ICWA? 

In a nutshell, the purpose of ICWA is “to protect the best interest of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture.” (25 U.S.C. §1902). 

At its core, the ICWA served to protect the “best interests of Indian children” by establishing guidelines: 

  • Federal standards for the removal of Indian children from their families. 
  • Default preferences for the placement of Native children in adoptive or foster homes. 
  • The statute also contains several record keeping provisions. 


Support for ICWA Depends on Native Population With Each State 

In Haaland v. Brackeen, three States and seven individuals (special interest groups) brought suit, asserting ICWA provisions are unconstitutional. States opposing ICWA, including Texas, Louisiana, Indiana, and Ohio, ultimately do not have large Native American populations. 

The District of Columbia and 26 states in support of ICWA are home to 94% of federally recognized Tribes, and that includes California, Alaska, Arizona, Colorado, Connecticut, Idaho, Illinois, Iowa, Maine, Massachusetts, Michigan, Minnesota, Mississippi, Montana, Nevada, New Jersey, New Mexico, New York, Oklahoma, Oregon, Pennsylvania, Rhode Island, Utah, Virginia, Washington, and Wisconsin. 

“The continued attack on our sovereignty is a serious one that involves more than meets the public eye,” concluded Jump. 

“The practice of separating Native children from their families and communities was a form of genocide—cultural genocide and literal genocide. That is why it is so important to our people to revive, teach, and preserve our culture, because in it we find a path toward healing.” 

More Information 

For more information about ICWA and the case brought before the SCOTUS, please tune into “This Land” podcast hosted by Rebecca Nagle. The second season of This Land ( this-land/) is a timely exposé about how the far right uses Native children to dismantle American Indian Tribes and quietly advance a conservative agenda.