U.S. Supreme Court upholds the Indian Child Welfare Act
The Supreme Court is seen on in Washington D.C.
Alex Brandon | AP Photo
The U.S. Supreme Court has upheld the 1978 Indian Child Welfare Act, also known as ICWA. The case was closely watched by tribal communities in Minnesota and across the country.
The law gives priority to tribal families in the foster care and adoption cases of Native American children.
MPR News host Cathy Wurzer speaks with Professor Angelique EagleWoman, director of the Native American Law and Sovereignty Institute at the Mitchell Hamline School of Law.
Use the audio player above to listen to the full conversation.
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Audio transcript
[MUSIC PLAYING] INTERVIEWER: And as you heard our top story, The US Supreme Court has upheld the 1978 Indian Child Welfare Act, also known as ICWA. The case was closely watched by tribal communities in Minnesota and across the country. The law gives priority to tribal families in the foster care and adoption cases of Native American children.
For more, professor Angelique EagleWoman is on the line. She's the director of the Native American Law and Sovereignty Institute at the Mitchell Hamline School of Law. Professor, thanks for taking the time.
ANGELIQUE EAGLEWOMAN: I'm so happy and pleased to be able to talk to you about this wonderful majority opinion.
INTERVIEWER: Just given what you've said, clearly you're quite happy.
ANGELIQUE EAGLEWOMAN: Absolutely. I think there's rejoicing throughout Indian country. Sometimes the US Supreme Court comes down with a decision and we really don't understand the reasoning. This one is very clear. It goes back to the foundations of the tribal nation, US relationship and the power of Congress to enact laws in furtherance of that relationship.
INTERVIEWER: I want to dive into that a little bit. First I want to go back, for folks who are not terribly familiar. What were the goals of the Indian Child Welfare Act? What were the arguments in the foster couple used?
ANGELIQUE EAGLEWOMAN: So the goals of the Indian Child Welfare Act were to prevent the removal of American Indian and Alaska Native children from their homes based on social workers, state social workers deciding there was neglect. And often this was around poverty or the fact that there are long-standing cultural practices of having children stay with relatives for weeks on end to visit.
And so social workers would say, oh, the child was abandoned, or the family income's not high enough, things like that that were pretextual. And we saw 25% to 35% of our children being removed in the 1950s and 1960s. So tribal leaders came together and lobbied Congress. And in 1978, Indian Child Welfare Act was passed.
The Act is supposed to put in place what happens when a state court has an Indian child before them that has been removed from the parental home. So if the child is enrolled in their tribe or eligible for enrollment, then the Indian Child Welfare Act kicks in. There should be notice to the tribe, to the biological parents. And the tribe has the right to intervene and be part of the process and/or request that the case be completely transferred to tribal court.
So I consider it a transfer statute. What we see from the adoptive, non-native parents and the state of Texas in bringing this challenge is an argument that they just want the Indian Child Welfare Act stricken. They want to raise an argument that just reformulates the whole relationship between the United States and tribal nations as a racial classification. There are US Supreme Court and many statues that disprove that.
They want to bring up an issue around Congress asking the states to have court records of any adoption or foster care placement of a child. Those reporting requirements they are trying to raise as commandeering in violation of the 10th Amendment of the US Constitution, the federal government commandeering the state government to do something.
So just a wide variety of really tenuous arguments came out in the federal district court in Texas. And then it went up to a panel of three judges in the Fifth Circuit who 2 to 1 voted it was constitutional. And then they requested en banc rehearing, which is up to 12 justices of the Fifth Circuit.
And they had en banc. They came out with a plurality opinion that was over 300 pages long and didn't rise to any definitive answer on the question. So all parties then appealed to the US Supreme Court. And we've been waiting since oral argument in November of 2022 for this decision.
INTERVIEWER: Wow, thanks for the background. I appreciate it. I'm wondering, a lot of legal experts expected ICWA to fail. Had it, what would the implications been? Would it put tribal sovereignty at risk?
ANGELIQUE EAGLEWOMAN: Well, the arguments that were being made in the lower courts were definitely trying to go to the heart of tribal sovereignty. Thankfully we don't see that kind of reasoning coming out of the US Supreme Court. The US Supreme Court has been involved with the metes and bounds of federal authority and the relationship with tribes since the very founding of the United States.
And so we see the court decision when it's talking about the arguments made about commandeering, the states relying on laws, federal laws from the 1790s, 1790, 1792, 1793, showing that Congress has the authority to have record-keeping by state courts, also upholding the fact that throughout the Constitution we have places, touchstones where we see that the Indian Child Welfare Act is completely within the constitutional power of Congress.
But we've had challenges to the Indian Child Welfare Act since it was enacted in 1978. We've had challenges to tribal sovereignty since the beginning of the United States. So this is something that tribal nations have to litigate, spend money, and effort on. And this decision, I think, is a great educational tool as well for people to learn more about the tribal nation, US relationship.
INTERVIEWER: I'm wondering professor, given what you said, there have been so many challenges in the past. Do you anticipate future challenges to ICWA, maybe under different clauses?
ANGELIQUE EAGLEWOMAN: We do see a concurrence by Justice Kavanaugh of leaving that door open for adoptive, non-native persons who allege other challenges and other types of proceedings. But in terms of who was sued in this case, they didn't have standing. And they didn't have an actual injury or harm that the court could redress and a decision of the court. So therefore, the court didn't even deal with some of the arguments that were made in the lower courts that should not have been argued. We did have a US Supreme Court decision in 1989 and one in 2013. So this is our third [? challenge ?] of Indian Child Welfare Act that's made it up to the US Supreme Court.
INTERVIEWER: Interesting. So before we go, what else would you like to say about this ruling?
ANGELIQUE EAGLEWOMAN: I just want to say what a full-circle moment it is to have Secretary of Interior Deb Haaland's name on this decision as a Laguna Pueblo woman, to see such a strong support for the Indian Child Welfare Act, and for keeping Native families intact, protecting our children and making sure they continue to have their tribal identity by being placed in homes of tribal members. So I think that is a full-circle moment and very much true justice and culturally affirming.
INTERVIEWER: Professor, I appreciate your time. Thank you so much.
ANGELIQUE EAGLEWOMAN: Thank you.
INTERVIEWER: Professor Angelique EagleWoman has been with us. She's the director of the Native American Law and Sovereignty Institute at the Mitchell Hamline School of Law.
For more, professor Angelique EagleWoman is on the line. She's the director of the Native American Law and Sovereignty Institute at the Mitchell Hamline School of Law. Professor, thanks for taking the time.
ANGELIQUE EAGLEWOMAN: I'm so happy and pleased to be able to talk to you about this wonderful majority opinion.
INTERVIEWER: Just given what you've said, clearly you're quite happy.
ANGELIQUE EAGLEWOMAN: Absolutely. I think there's rejoicing throughout Indian country. Sometimes the US Supreme Court comes down with a decision and we really don't understand the reasoning. This one is very clear. It goes back to the foundations of the tribal nation, US relationship and the power of Congress to enact laws in furtherance of that relationship.
INTERVIEWER: I want to dive into that a little bit. First I want to go back, for folks who are not terribly familiar. What were the goals of the Indian Child Welfare Act? What were the arguments in the foster couple used?
ANGELIQUE EAGLEWOMAN: So the goals of the Indian Child Welfare Act were to prevent the removal of American Indian and Alaska Native children from their homes based on social workers, state social workers deciding there was neglect. And often this was around poverty or the fact that there are long-standing cultural practices of having children stay with relatives for weeks on end to visit.
And so social workers would say, oh, the child was abandoned, or the family income's not high enough, things like that that were pretextual. And we saw 25% to 35% of our children being removed in the 1950s and 1960s. So tribal leaders came together and lobbied Congress. And in 1978, Indian Child Welfare Act was passed.
The Act is supposed to put in place what happens when a state court has an Indian child before them that has been removed from the parental home. So if the child is enrolled in their tribe or eligible for enrollment, then the Indian Child Welfare Act kicks in. There should be notice to the tribe, to the biological parents. And the tribe has the right to intervene and be part of the process and/or request that the case be completely transferred to tribal court.
So I consider it a transfer statute. What we see from the adoptive, non-native parents and the state of Texas in bringing this challenge is an argument that they just want the Indian Child Welfare Act stricken. They want to raise an argument that just reformulates the whole relationship between the United States and tribal nations as a racial classification. There are US Supreme Court and many statues that disprove that.
They want to bring up an issue around Congress asking the states to have court records of any adoption or foster care placement of a child. Those reporting requirements they are trying to raise as commandeering in violation of the 10th Amendment of the US Constitution, the federal government commandeering the state government to do something.
So just a wide variety of really tenuous arguments came out in the federal district court in Texas. And then it went up to a panel of three judges in the Fifth Circuit who 2 to 1 voted it was constitutional. And then they requested en banc rehearing, which is up to 12 justices of the Fifth Circuit.
And they had en banc. They came out with a plurality opinion that was over 300 pages long and didn't rise to any definitive answer on the question. So all parties then appealed to the US Supreme Court. And we've been waiting since oral argument in November of 2022 for this decision.
INTERVIEWER: Wow, thanks for the background. I appreciate it. I'm wondering, a lot of legal experts expected ICWA to fail. Had it, what would the implications been? Would it put tribal sovereignty at risk?
ANGELIQUE EAGLEWOMAN: Well, the arguments that were being made in the lower courts were definitely trying to go to the heart of tribal sovereignty. Thankfully we don't see that kind of reasoning coming out of the US Supreme Court. The US Supreme Court has been involved with the metes and bounds of federal authority and the relationship with tribes since the very founding of the United States.
And so we see the court decision when it's talking about the arguments made about commandeering, the states relying on laws, federal laws from the 1790s, 1790, 1792, 1793, showing that Congress has the authority to have record-keeping by state courts, also upholding the fact that throughout the Constitution we have places, touchstones where we see that the Indian Child Welfare Act is completely within the constitutional power of Congress.
But we've had challenges to the Indian Child Welfare Act since it was enacted in 1978. We've had challenges to tribal sovereignty since the beginning of the United States. So this is something that tribal nations have to litigate, spend money, and effort on. And this decision, I think, is a great educational tool as well for people to learn more about the tribal nation, US relationship.
INTERVIEWER: I'm wondering professor, given what you said, there have been so many challenges in the past. Do you anticipate future challenges to ICWA, maybe under different clauses?
ANGELIQUE EAGLEWOMAN: We do see a concurrence by Justice Kavanaugh of leaving that door open for adoptive, non-native persons who allege other challenges and other types of proceedings. But in terms of who was sued in this case, they didn't have standing. And they didn't have an actual injury or harm that the court could redress and a decision of the court. So therefore, the court didn't even deal with some of the arguments that were made in the lower courts that should not have been argued. We did have a US Supreme Court decision in 1989 and one in 2013. So this is our third [? challenge ?] of Indian Child Welfare Act that's made it up to the US Supreme Court.
INTERVIEWER: Interesting. So before we go, what else would you like to say about this ruling?
ANGELIQUE EAGLEWOMAN: I just want to say what a full-circle moment it is to have Secretary of Interior Deb Haaland's name on this decision as a Laguna Pueblo woman, to see such a strong support for the Indian Child Welfare Act, and for keeping Native families intact, protecting our children and making sure they continue to have their tribal identity by being placed in homes of tribal members. So I think that is a full-circle moment and very much true justice and culturally affirming.
INTERVIEWER: Professor, I appreciate your time. Thank you so much.
ANGELIQUE EAGLEWOMAN: Thank you.
INTERVIEWER: Professor Angelique EagleWoman has been with us. She's the director of the Native American Law and Sovereignty Institute at the Mitchell Hamline School of Law.
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