Haaland v. Brackeen Affirms the Constitutionality of ICWA

In adopting the Indian Child Welfare Act, Congress exercised that lawful authority 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.

— Justice Neil Gorsuch concurring in Haaland v. Brackeen

On June 15, 2023, the U.S. Supreme Court released its decision in Haaland v. Brackeen and, in a 7–2 opinion, affirmed the constitutionality of the Indian Child Welfare Act (ICWA). The opinion was seen as a victory in Indian Country—a victory for Tribal sovereignty, Native children and families, and the future of tribes and Native people in the United States.

ICWA was initially enacted in 1978 in response to the alarmingly high number of Native children being removed from their homes by both public and private agencies. At the time, research revealed that 25–35 percent of all Native children were being removed from their homes, and, of these, 85 percent were placed outside their families and communities, even in scenarios where fit and willing relatives were available. Congress reacted to this data by passing this legislation with the intent to “protect the best interests of Indian children and to promote the stability and security of Indian tribes and families” (25 U.S.C. § 1902). 

The act sets federal requirements that apply to state child custody proceedings involving a Native child who is a member of, or eligible for membership in, a federally recognized tribe. Notably, when ICWA applies to a child’s case, the child’s tribe and family will have an opportunity to be involved in decisions affecting services and placements for the child. A tribe, parent, or Native custodian can also petition to transfer jurisdiction of the case to the Tribal court of the child’s tribe.

ICWA has been labeled the “gold standard” in child welfare practice by a coalition of 18 national child advocacy organizations, and it is still needed in the United States today. While the act has protected Native children in many cases, and the statistics are improving from when it was first enacted in 1978, there is still widespread noncompliance from state courts and systems. Today, Native children are three times more likely to be removed by state child welfare systems than non-Native children. Fifty-six percent of adopted Native children are placed outside their families and communities.

And so, when the Brackeen decision was released, Native communities across the nation rejoiced. In particular, the decision was celebrated by Native attorneys and advocates of ICWA and Tribal sovereignty, not just because it was the best outcome for tribes and Native people, but also because of the amount of work they put into making sure ICWA was protected by the Supreme Court. In many ways, it was an uphill battle and one that was doubtful to be successful. Nevertheless, ICWA advocates persisted, and their tireless efforts were successful.