Law & Courts

Supreme Court Backs Indian Child Welfare Act, as a Justice Cites Boarding School Legacy

By Mark Walsh — June 15, 2023 7 min read
Demonstrators stand outside of the U.S. Supreme Court, as the court hears arguments over the Indian Child Welfare Act on Nov. 9, 2022, in Washington. The Supreme Court has preserved the system that gives preference to Native American families in foster care and adoption proceedings of Native children. The court left in place the 1978 Indian Child Welfare Act, which was enacted to address concerns that Native children were being separated from their families and, too frequently, placed in non-Native homes.
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The U.S. Supreme Court on Thursday rejected a major challenge to the Indian Child Welfare Act, a 1978 federal law that established standards for state family court proceedings involving Native American children.

In a notable concurrence, Justice Neil M. Gorsuch detailed his views about why the law was necessary to respond to the nation’s “devastating” policies of removal of such children from their families, beginning with federal Indian boarding schools in the 19th century and later with family court proceedings in the mid-20th century favoring white adoptive parents.

While Indian education initially meant day schools on reservations, sometimes taught by missionaries or the wives of U.S. Army officers, “the federal government had darker designs,” Gorsuch wrote in his concurrence in Haaland v. Brackeen.

“By the late 1870s, [the federal government’s] goals turned toward destroying tribal identity and assimilating Indians into broader society,” Gorsuch wrote, and “thus began Indian boarding schools.”

The first Indian boarding school opened in 1979 in Carlisle, Pa., becoming the model for 408 similar federal institutions nationwide, Gorsuch observed. Federal officials used economic coercion and sometimes abduction to force Native American children into such schools.

“Upon the children’s arrival, the boarding schools would often seek to strip them of nearly every aspect of their identity,” Gorsuch wrote. “The schools would take away their Indian names and give them English ones. The schools would cut their hair—a point of shame in many native communities—and confiscate their traditional clothes.”

Tribes were required to shoulder most of the costs of the schools, and students at least as young as 12 were often required to work on the grounds or be sent out to live with white families and perform household and farm chores, Gorsuch said.

A 1928 report by the Brookings Institution found the schools “grossly inadequate” and recommended that the federal government move away from boarding schools in favor of sending Native American children to tribal day schools or nearby public schools, he noted.

“That transition would be slow to materialize,” Gorsuch said, and as late as 1971, more than 17 percent of the Indian school-age population was still in the boarding schools. There are a small number of boarding schools, as well as schools on reservations operated by the U.S. Department of the Interior’s Bureau of Indian Education.

Gorsuch went on to describe how the transition away from boarding schools eventually lead to the Indian Child Welfare Act. Some states promoted the adoption of Indian children by non-Native American families. By the 1960s and 70s, between 25 and 35 percent of such children were separated from their families, and often removed from their communities, by questionable family court proceedings, he said.

The federal statute created procedural and substantive safeguards requiring notice of any involuntary removal proceeding to the Indian child’s parent and tribe. And the law gives placement preference to a member of the child’s extended family, then other members of his or her tribe, and then other Indian families.

‘Complicated issues’ in a multi-pronged challenge to the 1978 law

The state of Texas, along with four non-Native American families engaged in adoption cases covered by the law, challenged ICWA on multiple grounds. Those included that Congress lacked the constitutional authority to enact the law; that the statute infringes on a traditional area of state governance—family law; and that the law impermissibly employs racial classifications.

Justice Amy Coney Barrett, writing for the 7-2 majority, explained that “this case is about children who are among the most vulnerable: those in the child welfare system.”

But “the issues are complicated,” she said, and “the bottom line is that we reject all of the petitioners’ challenges to the statute, some on the merits and others for lack of standing.”

The majority declined to overturn a lower federal court’s ruling that ICWA is consistent with Congress’s authority over Indian affairs under Article I of the Constitution. The majority rejected the challengers’ claims that the federal law “commandeered” the states to perform certain family law functions.

And the court rejected the equal-protection challenge, which contends that the law favors Indian families over non-native families on the basis of race. Barrett said none of the challengers had proper legal standing to bring that claim.

Barrett’s opinion was joined by Gorsuch as well as Chief Justice John G. Roberts Jr. and Justices Sonia Sotomayor, Elena Kagan, Brett M. Kavanaugh, and Ketanji Brown Jackson.

Kavanaugh wrote a concurrence to emphasize that he considers the equal-protection issue to be serious because under ICWA, a child in foster care or adoption proceedings, as well as prospective foster or adoptive parents, may be denied a particular placement or opportunity because of their race.

“Those scenarios raise significant questions under bedrock equal protection principles and this court’s precedents,” he said, adding that the issue may one day return to the court by parties with proper standing.

Justice Clarence Thomas wrote a lengthy dissent arguing that Congress exceeded its authority over Indian affairs when it passed ICWA.

“Today, Indians are citizens of the United States; the vast majority of them do not live on any reservation or Indian lands, but live (as most citizens) on lands that are wholly within a state’s jurisdiction,” Thomas said. “Thus, one might expect that when a child custody issue regarding an Indian child arises in a state court, that court would apply the same laws that it would for any other citizen.”

Justice Samuel A. Alito Jr., in a separate dissent, said, “Whatever authority Congress possesses in the area of Indian affairs, it does not have the power to sacrifice the best interests of vulnerable children to promote the interests of tribes in maintaining membership.”

Praise for ruling from a president who had voted for it

Kathryn E. Fort, the director of the Indian Law Clinic at Michigan State University’s College of Law, said the decision is “a resounding victory for Indian child welfare, for native families, and for principle of federal Indian law.”

Fort, who helped represent several tribes that had intervened in the case to support ICWA, praised Gorsuch for his discussion of Indian boarding schools, especially for his multiple citations to a 2022 investigative report on those schools by the federal Bureau of Indian Affairs.

“That report brought back a consciousness of this issue and raised the profile of the discussion.”

Amanda L. White Eagle, a clinical fellow at New York University law school who oversees the NYU/Yale Sovereignty Project dealing with Native American legal issues, said she was pleased that Gorsuch had also cited studies going back years “that exposed the inadequacies of Indian boarding schools.”

“By proving this capacious view of our histories, he was really able to show why this was important and why this led to the development” of the 1978 law, said White Eagle, who co-wrote a friend-of-the-court brief for two historical groups that focused on the boarding school legacy (and was itself cited by Gorsuch).

“It was quite a concurrence,” she said.

President Joe Biden praised the ruling in a statement, noting that he had supported ICWA as a U.S. senator.

“Our nation’s painful history looms large over today’s decision,” Biden said. “In the not-so-distant past, Native children were stolen from the arms of the people who loved them. They were sent to boarding schools or to be raised by non-Indian families—all with the aim of erasing who they are as Native people and tribal citizens. These were acts of unspeakable cruelty that affected generations of Native children and threatened the very survival of Tribal Nations.”

Gorsuch’s concurrence was joined in part (including his section on Indian boarding schools) by Sotomayor and Jackson.

In his conclusion, speaking only for himself, Gorsuch said, “Often, Native American Tribes have come to this court seeking justice only to leave with bowed heads and empty hands. But that is not because this court has no justice to offer them.”

In adopting ICWA, he said, Congress exercised its “lawful authority” over Indian affairs “to secure the right of Indian parents to raise their families as they please; the right of Indian children to grow in their culture; and the right of Indian communities to resist fading into the twilight of history.”


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