Supreme Court preserves law that aims to keep Native American children with tribal families | AP News
By: MARK SHERMAN (AP NEWS)
S E E D E D C O N T E N T
By MARK SHERMANJune 15, 2023 GMT1 of 7FILE- Demonstrators stand outside of the U.S. Supreme Court, as the court hears arguments over the Indian Child Welfare Act, Nov. 9, 2022, in Washington. The Supreme Court on Thursday, June 15, 2023, preserved the 1978 Indian Child Welfare Act, which gives preference to Native American families in foster care and adoption proceedings of Native children, rejecting a broad attack from Republican-led states and white families who argued it is based on race. (AP Photo/Mariam Zuhaib, File)1 of 7FILE- Demonstrators stand outside of the U.S. Supreme Court, as the court hears arguments over the Indian Child Welfare Act, Nov. 9, 2022, in Washington. The Supreme Court on Thursday, June 15, 2023, preserved the 1978 Indian Child Welfare Act, which gives preference to Native American families in foster care and adoption proceedings of Native children, rejecting a broad attack from Republican-led states and white families who argued it is based on race. (AP Photo/Mariam Zuhaib, File)
WASHINGTON (AP) — The Supreme Court on Thursday preserved the system that gives preference to Native American families in foster care and adoption proceedings of Native children, rejecting a broad attack from some Republican-led states and white families who argued it is based on race.
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.
Tribal leaders have backed the law as a means of preserving their families, traditions and cultures.
The "issues are complicated" Justice Amy Coney Barrett wrote for a seven-justice majority, but the "bottom line is that we reject all of petitioners' challenges to the statute."
Justices Clarence Thomas and Samuel Alito dissented, with Alito writing that the decision "disserves the rights and interests of these children."
Congress passed the law in response to the alarming rate at which Native American and Alaska Native children were taken from their homes by public and private agencies.
The law requires states to notify tribes and seek placement with the child's extended family, members of the child's tribe or other Native American families.
Three white families, the state of Texas and a small number of other states claim the law is based on race and is unconstitutional under the equal protection clause. They also contend it puts the interests of tribes ahead of children and improperly allows the federal government too much power over adoptions and foster placements, areas that typically are under state control.
The lead plaintiffs in the Supreme Court case — Chad and Jennifer Brackeen of Fort Worth, Texas — adopted a Native American child after a prolonged legal fight with the Navajo Nation, one of the two largest Native American tribes, based in the Southwest. The Brackeens are trying to adopt the boy's half-sister, now 4, who has lived with them since infancy. The Navajo Nation has opposed that adoption.
More than three-quarters of the 574 federally recognized tribes in the country and nearly two dozen state attorneys general across the political spectrum had called on the high court to uphold the law.
All the children who have been involved in the current case at one point are enrolled or could be enrolled as Navajo, Cherokee, White Earth Band of Ojibwe and Ysleta del Sur Pueblo. Some of the adoptions have been finalized while some are still being challenged.
The high court had twice taken up cases on the Indian Child Welfare Act before, in 1989 and in 2013, that have stirred intense emotion.
Before the Indian Child Welfare Act was enacted, between 25% and 35% of Native American children were being taken from their homes and placed with adoptive families, in foster care or in institutions. Most were placed with white families or in boarding schools in attempts to assimilate them.
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This is a big deal.
It was a 7- 2 decision with Thomas and Alito disenting.
This is a big deal. Good for SCOTUS they got one right for a change
They sure did this is a subject that is so very personal to Native peoples that its difficult to explain it.
gee, a common sense ruling, wtf?
Thanks goodness, dev.
Oops, I just seeded a similar article from NYT ... off to delete it now.
Thanks, Hallux.
No surprise there.
None at all, pat.
“Thomas and Alito”
T and A
What an interesting case opinion to read. Gives the tribes/nations a "light at the end of the tunnel" for ICWA.
I'm surprised that Roberts voted in support but not surprised with Alito - both have adopted children and have both voted against ICWA in the past due to their personal bias and not a judicial rendering.
It's a long read (113 pages) but brings out some damn interesting cases in support of the decision.
I's about time.
This is a very important decision. Of course, we would expect that the two long-time reactionary activist justices would vote the wrong way.
I would have bet that those two would vote against it. That was pretty much a given the liberal judges, Gorsuch I was sure would vote to keep it as is. Barrett and Kavanaugh were the questions marks for me.
Rather surprising, but sometimes you just never know.
they're younger and can see the writing on the wall for alito, roberts and thomas...
I remember reading one of those emotionally charged articles, from the perspective of the adoptive couple, on this when the case was about to go before the court. Nothing led me to believe they would win at the SCOTUS, but one never knows these days.
The attack on ICWA has been on going for years and years so I wasn't sure which way it would go.
Of course we never know how these things go until they do, but I was optimistic in this case.
A victory for the racialists.
An ignorant comment but then again you're known for that.
And you defend racialist policies, but then again you are known for that.
The Court admits that this ruling will place the racial claims of the tribes over the best interests of the child and even the desires of a child's biological parents to improve their children's lives. Better a kid live with someone with the right race who lost their ability to foster kids because of criminal charges than the family the kid loves and who takes care of it.
I think the child's best interests matter. But race uber alles, eh Kavika?
Better kids suffer than the tribe lose a member, eh?
If it is in the best interest of native people that have been subjugated by society and the government you Goddamn right I am. Unlike you who sits on the sidelines whining, I actually protest and fought them in legal proceedings.
I'm sure that you were protesting the taking of Indian children for decades and giving them to non-Indian families for less than honorable reasons, which is the reason the ICWA was instituted. But I guess that is just fine with you.
Nice try with your usual bigoted BS, Sean.
This has nothing to do with the number of tribal members, I guess that throwing stupid comments out is your stock and trade.
“Better kids suffer than the tribe lose a member, eh?”
And you are somehow the arbiter of what’s in the best interest of any kid?
Your energy is wasted here, your rhetoric is hateful, and the logic is flawed. Move on.
Better yet Sean - read the opinion as posted in 1.5 and you'll get your "racist" love thrown out with the dirty dishwater.
A victory for people who think they can use Indian children as up for sale.
This is amazing news and totally unexpected. I'm glad to see that it was an overwhelming opinion, so maybe this will be the end of this issue.
My understanding is that they only ruled on one of the suits and the others were dismissed for not having standing.
"The Brackeens are trying to adopt the boy's half-sister, now 4, who has lived with them since infancy. The Navajo Nation has opposed that adoption."
Why would the tribe oppose this? In this particular case, what's the value of taking the girl away from parents who have raised her, to go live with some relative she's never seen. Wouldn't the summer visits be sufficient. The girl would be better off staying with the only parents she's known.
Neither of the children should have been at the home of the Brackteens to begin with. The law is simple and to the point, they and lower courts choose to ignore it.
No they shouldn't have been. But the Brackeen's didn't ignore anything, and they are not at fault here. Research the full story so you are better informed. It appears that a deal to have a family from the Navajo Nation adopt him didn't work out, so they consented to the Brackeen's adopting him. Why not have the sister stay with the Brackeen's also.
I know the story quite well, and you as a latecomer to the world of ICWA can add your 2 cents without knowledge or the history of it. Where were you when thousands of Indian kids were taken from their homes and given to white families? Are you not familiar with that part of our recent history or would you rather ignore it and whine about this case?
eeeek! crt...
Greg - as part of your "research" did you find the section where the Brackeen's stated that they "could better afford", because they are both "professional people" adopting a poor Indian child who wouldn't have had a chance at having a viable family?
The tribe did a Solomon, cut the siblings in half, what is strange is the tribe approved the boys adoption but protested the girls.
You' think they would have more concern about the welfare and wishes of these kids
Please don't think that you know anything about this and the history of ICWA, Greg, you don't and once again where were you when the thousands of Indian kids were taken from their families and given to white families?
I haven't read all of this, but it appears the Navajo Nation opposed the adoption of the brother, but lost.
Read the opinion posted in 1.5 - you both are very decidedly incorrect in your assessments.
Read the facts.
Texas claimed jurisdiction - the Navajo, with their reservations in Arizona/NM/UT, knew which battle to choose.
They opposed the half sister, approved of the older brother.
seems weird to split siblings up.
why would anyone do that?
Not sure about Texas, but the driving force should always be, “the best interest of the child” the decision should be based on that.
now you and I know that makes sense but feel we are definitely in the minority here
Not arguing, because I haven't read a full background, but the reports I have read indicate that the Navajo Nation contested the boy's adoption, for some 2 years, before backing off. I don't know that I'd call that an approval.
DIdn't take is arguing from you, if i came across that way my apologies.
The Texas couple obtained an emergency stay of the judge’s order and proceeded to file the federal lawsuit now being heard before the Supreme Court. Navajo Nation tribal officials later approved the adoption on Jan. 8, 2018 — a “day to be celebrated” for the Brackeens, they said.
Couple reveal Native American adoption Supreme Court fight (nypost.com)
I didn't take your comment as argumentative.
My take, either people believe the tribes have sovereignty or they don't.
Justice Gorsuch wrote the majority opinion and this is part of what he stated about sovereignty.
I "think" it was Jackson who wrote the majority opinion - Gorsuch concurred.
Jackson's opinion, if read, is really kinda neat - and to the point.
My mistake it was Justice Amy Coney Barrett that wrote the majority decision.
What I quoted was actually only part of what Justice Gorsuch wrote on the case see comment 6.2.2 which was in support of Justice Barrett majority decision.
You are quite right Kavika - twinkle fingers just don't know how to type
Apologies.
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I don't have any problems with their sovereignity but do question the wisdom if taking siblings out of a loving home where they are cared for.
Is sovereignty not absolute? Who are we to decide what is best for their children. I would rather them learn and keep their culture and heritage. Not our place to get involved so to speak.
I thought I had made my feelings clear enough.
guess not.
you can talk about sovereignty all you want but at the end of the day my concern is for the kids, not whether some adults got pissed off.
it makes no sense to me to split siblings up or to remove kids from the only home they know unless they are being abused or neglected.
Who are you or I to make any determination.
never mind. the point is totally wasted on you.
but by golly, let's make sure to ensure sovereignty and to hell with the kids.
ICWA is quite clear and today's SCOTUS decision supported it.
Everyone can have their opinion of the decision or ICWA but the fact remains that thousands of Indian children were taken from their parents at time under the penalty of law and no one including the US government gave a damn about them. That is the reason that the ICWA was made into law in 1978. If it had been followed in this case the girl would never have been in the Trackeen's custody.
If sovereignty is so important why don’t the tribal courts take jurisdiction? They have that right.
but it was not so we should make kids suffer so adults don't get their feelings hurt.
you will need to come up with something better than that to convince me that splitting siblings up or removing them from the only home they have known is in the best interests of the children.
THAT'S what I am worried about but from the tone of the comments here the interests of the kids comes second to sovereignty.
I think it is wrong.
gee, that sounds just like the GOP's ideology concerning sensible gun laws. one size fits all...
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I'm not trying to convince you of anything just explaining the facts and the history of the act.
my next comment was going to be that them admitting to being evangelicals should have disqualified them at the beginning, based upon history...
I know what the law is.
I think in this case it does not serve the children well.
look I get caring more for kids than sovereignty is unpopular but I can't help it.
I sure hope the kids make it ok.
who cares?
They do not always have jurisdiction.
2.2 - When does a state have jurisdiction?
A state court has jurisdiction over a child custody proceeding involving an Indian child in four situations: (1) where the child is domiciled or resides off an Indian reservation, and is not a ward of the tribal court, 25 U.S.C. 1911 (b); (2) where the state has been granted jurisdiction on the reservation under Public Law 280 , Doe v. Mann (Mann II) , 415 F.3d 1038 (9th Cir. 2005); (3) through a tribal-state agreement in which the tribe allocates jurisdiction to the state; 25 U.S.C. 1919 (a); and (4) through limited emergency jurisdiction where a reservation-resident Indian child is temporarily off the reservation and the state has removed the child in an emergency situation to prevent imminent physical damage or harm to the child. 25 U.S.C. 1922 . This emergency jurisdiction terminates when such removal or placement is no longer necessary to prevent imminent physical damage or harm to the child.
2.3 - When does a tribe have jurisdiction?
A tribe has jurisdiction over a child custody proceeding involving an Indian child in three situations: (1) where the child is domiciled or resides on an Indian reservation, 25 U.S.C. 1911 (a); (2) when the child is a ward of the tribal court, regardless of the childs domicile or residence, 25 U.S.C. 1911(a); and (3) concurrent jurisdiction where the child is domiciled or resides off an Indian reservation and is not a ward of the tribe's court. 25 U.S.C. 1911(b).
A tribe that became subject to state jurisdiction under Public Law 280 may reassume exclusive jurisdiction over Indian child custody proceedings by submitting an application to the Secretary of the Interior with a plan as to how the tribe will exercise its jurisdiction. 25 U.S.C. 1918 .
2.8 - Who determines jurisdiction?
As noted above, jurisdiction over Indian child custody matters is statutorily defined under the ICWA. Nonetheless, many factual issues implicate jurisdiction, such as whether the child is an Indian and whether the child is domiciled on an Indian reservation. These issues may be decided in tribal, federal and state courts, and ultimately the Supreme Court of the United States. Miss. Band of Choctaw Indians v. Holyfield , 490 U.S. 30 (1989); In re Halloway , 732 P.2d 962 (Utah 1986).
Did you agree with them taking the Cuban boy and sending him back to his family.
what does that have to do with it?
I believe the custodial parent should have retained guardianship.
Sovereignty. We had to give the child back to his country.
Our feelings don't matter.
Then I'm sure that you are very upset over the thousand of Indian kids ripped from their families where our sovereignty was ignored. Good to know.
if I could change it I would.
does ripping these kids from a loving home change it?
you asked my opinion, don't argue it!
And I thank you.
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Difference of opinion is not arguing. Just banter.
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You have that chance since it is still happening in some states that are ignoring ICWA, South Dakota being one of the worst.
Or you could stay right in Texas and fight to help kids in the Texas child welfare system. It was and is quite bad, so bad in fact that a federal judge got involved.
You do realize that every day in the US, children in foster care who spend their lives under the guardianship of one family are given back to their birth parents. Do you feel outraged for them, too?
Texan - sovereignty isn't the issue with ICWA. If you actually read the law, you will see that the well-being of the child(ren) is tantamount in all ICWA cases.
The purpose of the Indian Child Welfare Act (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 and placement of such children in homes which will reflect the unique values of Indian culture. .. "(25 U.S. C. 1902). ICWA provides guidance to States regarding the handling of child abuse and neglect and adoption cases involving Native children and sets minimum standards for the handling of these cases.
Congress enacted ICWA in 1978 to address the Federal, State, and private agency policies and practices that resulted in the ‘‘wholesale separation of Indian children from their families.’’ Congress found ‘‘ that an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions . . . . ’’ Although the crisis flowed from multiple causes, Congress found that non-Tribal public and private agencies had played a significant role, and that State agencies and courts had often failed to recognize the essential Tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families. To address this failure, ICWA establishes minimum Federal standards for the removal of Indian children from their families and the placement of these children in foster or adoptive homes, and confirms Tribal jurisdiction over child-custody proceedings involving Indian children.
The children come first - always - not "jurisdiction" as so many "want" it to be - often failed to recognize the essential Tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families.
The adoption world is so rift with illegal takings - not just Native American children, but also Black, Asian, Hispanic. In the adoption world, if ya got the money, we got the child - pure and simple - nothing to do with sovereignty - always the money.
Hell - the Catholic church advertised selling Indian kids for $10.00 - so they could be raised in "white, educated homes".
There is a marked difference between giving kids back to birth parents (if they are deemed fit) and taking kids out of a loving home and placing them with total strangers.
Sure have been a mountain of comments about sovereignty and little to no comments about the welfare of the kids here.
Good news.
Indeed it is, Veronica.
I think the ICWA is a good thing. In my neck of the woods, there are people that take part in the foster program, that probably should not, and are potentially doing so for the monthly subsidy. The result, in those situations, is generally a house full of kids, living in squaller. (because these families generally foster more than one kid) Sounds harsh and judgmental, on my part, but it's the truth. Where applicable, the ICWA allows the tribe to step in and prevent such a situation.
This has been a huge problem with Indian people for decades, T Rex. In the 1950s the US government instituted the ''Indian Adoption Project'' that took thousands of Indian children from their parents that gave them to white couples which has devastated generations of Indian children.
So, of course, I am in full support of ICWA and always have been.