Supreme Court Upholds the Indian Child Welfare Act

The U.S. Supreme Court upheld the Indian Child Welfare Act on Thursday, a surprise for some. The law gives preference to Indian tribes in the context of Indian child adoption and foster care proceedings. In a 7-2 vote, the Court held that the law does not overstep Congress’s authority and does not impermissibly impose a federal mandate on traditionally state-regulated areas of power.

The Indian Child Welfare was enacted more than 45 years ago after Congress found that “an alarmingly high percentage” of Indian children had been removed from their homes and placed with non-Indian families and institutions. The law gives a child’s tribe the ability to alter the prioritization hierarchy, which normally ranks Indian families and institutions first. The child’s or their parents’ preferences generally do not trump the hierarchy outlined in the law or determined by tribal resolution, although a child’s parent or custodian and tribe have the right to intervene in involuntary proceedings. In voluntary proceedings, a child’s biological parent is not generally given the ability to choose the child’s foster or adoptive parents. The child’s tribe can intervene to place the child in foster care, terminate parental rights, or collaterally attack the state court’s custody decree.

The petitioners in the case included a birth mother, adoptive and foster parents, and the State of Texas. They asserted that the Indian Child Welfare Act was unconstitutional because Congress lacked the authority to enact it, and many of its requirements violated the anti-commandeering principle of the Tenth Amendment. They argued that the law uses racial classifications that unlawfully hinder non-Indian families from fostering or adopting Indian children and that the portion of the law allowing tribes to alter the prioritization order violated the non-delegation doctrine. (The non-delegation doctrine is a principle that holds that Congress cannot transfer its legislative powers to other organizations or parties.)

Justice Amy Coney Barrett delivered the majority opinion. The opinion notes that while Congress’s authority to legislate in relation to Indian affairs is “not unbounded,” there is no complete restriction on its power to legislate in the area of family law. In regard to the petitioners’ Tenth Amendment argument, the opinion notes that there was no showing that the requirements at issue, two of which apply to both private and public parties, necessitate the use of state sovereign power.

As to the petitioners’ equal protection challenge to the law’s placement preferences and their non-delegation challenge to the portion of the law allowing tribes to alter the preference hierarchy, the Court held that no party before it had standing. It noted that the individual petitioners did not show that their injury was likely to be redressed by judicial relief and that the State of Texas lacked standing because it does not have its own equal protection rights and cannot assert those rights on behalf of its citizens.

Additional Reading

The Supreme Court leaves Indian Child Welfare Act intact, NPR (June 15, 2023)

Haaland v. Brackeen, 599 U.S. ___ (2023)

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