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November 01, 2023 2023 ABA Annual Meeting Recap

Indian Child Welfare Act—Paths Ahead

Lawrence E. Bechler

Moderator: Amy Wesaw, Senior Staff Attorney, Nottawaseppi Huron Band of the Potawatomi, Fulton, MI

Panelists: Troy A. Eid, Greenberg Traurig, LLP, Denver, CO; Robert Saunooke, Saunooke Law Firm PA, Cherokee, NC; Jennifer Weddle, Greenberg Traurig, LLP, Denver, CO

The panelists all discussed the impact of the recent SCOTUS decision upholding the Indian Child Welfare Act (ICWA) (25 USC §§1901 – 1963) against challenges that its policy favoring adoptions by tribal members over non-tribal members violated the Tenth Amendment and the Equal Protection Clause, Haaland v. Brackeen, __ US __, 143 S. Ct. 1609, 216 L, Ed. 2nd 254, 2023 US LEXIS 2545 (June 15, 2023). While this case was decided on standing grounds in a 7-2 decision, a lengthy concurrence by Justice Gorsuch may become pivotal in future decisions relating to state policies on adoptions.

Rob Saunooke, a former member of the Board of the State and Local Government Law Section, noted that the purpose of the ICWA when adopted by Congress in 1978, was to prevent, whenever possible, the removal of Native American children from their birth family or tribe. He noted that before the ICWA, over 90 percent of Native American children going through guardianship or adoption proceedings were paced with non-Native American parents. Congressional power to regulate Native Americans comes from the “Indian Commerce Clause” – US Const. art. I, §8, cl. 3 – so that tribal nations are recognized as sovereign states. The challengers – potential non-native adoptive parents of Native American children – unsuccessfully argued that the ICWA’s preference for adoption within the Native American family or tribe was an unconstitutional racial preference. Eighteen states have adopted legislation similar to ICWA, so in those states, it is preferable to proceed under those state legislative programs rather than the ICWA to avoid claims that states’ rights are being usurped by Federal law.

Jennifer Weddle, past president of the Native American Bar Association, noted that attacks on the ICWA had been nearly as frequent as attacks on “Obamacare.” Brackeen and the other plaintiffs were Texas prospective non-Native American adoptive parents. In this case, Texas was joined by three states in challenging ICWA, while 23 states and nearly all Native American tribes opposed the lawsuit. Justice Barrett’s majority opinion recognized that Congress had almost 200 years of experience in legislating on Native American affairs, which the plaintiffs essentially ignored. While Congress’ power was not absolute, with states having some authority over trade, virtually all authority over Native American commerce and tribes lies with the Federal government. Ms. Weddle noted that Justice Gorsuch’s concurrence, in which Justices Sotomayor and Jackson concurred in part, laid out the long history of Congressional jurisdiction over tribes as sovereign nations and has the potential to become a leading doctrine for ICWA cases eventually.

Troy Eid, co-chair of his firm’s American Indian Law Practice Group, noted that as more states adopt legislation like the ICWA, it may become appropriate to apply Brackeen in contexts other than in Native American guardianships and adoptions since research shows that children of all kinds succeed at a demonstrably higher level when raised within their own culture rather than a brand new culture.

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Lawrence E. Bechler

Murphy Desmond S.C.

Lawrence E. Bechler, Murphy Desmond S.C., serves as co-chair of its Municipal Law Practice Group.