Supreme Court rejects Texas' attempt to undermine protections for Native American kids

The Supreme Court on Thursday rejected a challenge to a 45-year-old law aimed at protecting Native American kids. By a 7-2 vote, the conservative-leaning high court upheld the Indian Child Welfare Act against claims by conservative critics and the state of Texas that it was unconstitutional.

Justices Clarence Thomas and Samuel Alito dissented from the majority in the Haaland v. Brackeen case.

For decades, the U.S. government actively removed children born to families in Native American tribes in an attempt to assimilate them into white culture. The kids were permanently placed in government-run schools or white people’s homes. 

Shannon Smith, the executive director of the Indian Child Welfare Act Law Center, told the now-defunct website ThinkProgress in 2016 that these policies were an attempt to “educate the Indian out a child,” based on the belief that “if you could remove children from families, they would be better off, have a better way of life, [and] a better future.”

Congress passed the Indian Child Welfare Act of 1978 to keep Native American children with their families and tribes as much as possible. The law allows tribal courts to decide custody cases involving members who live on reservations and gives tribal courts partial jurisdiction over cases involving members who do not live on reservations. Smith said the law recognized both that “for tribes, the children were their most valuable resource” and that “it was in the best interest of Indian children to have a connection with their families and tribes.”

Federal courts have typically stayed out of challenges to laws like the Indian Child Welfare Act because Native American tribes are treated as quasi-sovereign governments, and Article I, Section 8 of the Constitution specifically grants Congress the authority to regulate commerce “with the Indian Tribes.”

But conservative legal groups have long sought to convince federal courts to get involved.

After a non-Native American couple from Texas was not permitted to adopt a Native American foster child, they, along with Republican Texas Attorney General Ken Paxton, in 2017 brought a federal court challenge to the Indian Child Welfare Act’s constitutionality.

Paxton, who is currently suspended from his post following a May 2023 impeachment in the state House of Representatives, claimed at the time: “The Constitution makes clear that people are more than just their racial background. But ICWA elevates a child’s race over their best interest in a way that could endanger Texas children.” 

The case was assigned to U.S. District Judge Reed O’Connor, a right-wing George W. Bush appointee known for his rulings overturning the Affordable Care Act and other progressive legislation. O’Connor’s rulings were subsequently overruled by higher courts. 

In 2018, O’Connor sided with Texas and ruled that the Indian Child Welfare Act violated the 10th and 14th Amendments. An appeals court upheld part of his ruling.

But on Thursday seven Supreme Court justices disagreed. In her majority opinion, Justice Amy Coney Barrett noted, “In 1978, Congress enacted the Indian Child Welfare Act (ICWA) out of concern 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.'”

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

The National Indian Child Welfare Association, which works to protect American Indian and Alaska Native children, praised the ruling, saying in a statement: “The Court’s decision affirmed that the Indian Child Welfare Act (ICWA) is constitutional, puts the best interests of Native kids first, and is grounded in tribal sovereignty. This ruling respects the work that Tribal Nations have done for millennia to ensure Native kids stay connected to their families, communities, and cultures whenever possible.”

“The Supreme Court just validated what Indian Country and Tribal advocates have been saying for generations: the Indian Child Welfare Act is the gold standard of child welfare policy,” Hawaii Democratic Sen. Brian Schatz, who chairs the Senate Committee on Indian Affairs, said in a statement. “I applaud today’s decision, which upholds the constitutionality of this landmark law, respects Tribal sovereignty, and protects the best interests of Indian children.”

The vice chair of the committee, Republican Alaska Sen. Lisa Murkowski, called it “a victory for Native people.”

Interior Secretary Deb Haaland, the first Native American to serve in a presidential Cabinet, said, “Today’s decision is a welcome affirmation across Indian Country of what presidents and congressional majorities on both sides of the aisle have recognized for decades.”

Published with permission of The American Independent Foundation.