Current Events: The Indian Child Welfare Act and Tribal Sovereignty

In late June, when the Supreme Court typically releases the major decisions of its most recent term, the Court will settle the matter of an adoption dispute that has the potential to completely transform the tribal sovereignty of the 574 Indian nations recognized by the U.S. federal government.

The principle of tribal sovereignty is defined as the right of Indian nations to self-governments as established in the U.S. Constitution. Nevertheless, the United States has had a long, violent, and deeply troubling relationship with Native Americans. During the past half century, some efforts at the federal level have sought to remediate the ongoing harms of U.S. federal policy toward Indian nations and their citizens. The Indian Child Welfare Act (ICWA), passed by Congress in 1978, offers one key example. ICWA affirms the principle of tribal sovereignty and generally entrusts the decisions of child welfare for members of federally-recognized tribes to members of the tribe. In cases of foster-care placements and adoption, ICWA prioritizes the importance of upholding the cultural heritage of Native American children and affords family members, members of the child’s tribal nation, and members of other tribal nations preference over other interested parties.

Although ICWA has existed for over four decades, it continually caused controversy; since 2010, only the Affordable Care Act has been subjected to more legal challenges in federal courts. One filing, Brackeen v. Haaland, challenges the foundations of Indian child welfare policy, arguing that ICWA gives Indians a racial advantage over other parties interested in adoption. In Brackeen, a prospective white adoptive family believes that they offer a superior home environment to the alternatives offered by a young Native boy’s extended family, and they have fought to adopt the child that they have now fostered for several years. Tribal authorities have challenged the Brackeen family’s legal arguments and have argued throughout that ICWA entitles the boy’s family (and, by extension, his tribal nation) to custody. Further, they argue that the priorities given to Native Americans in ICWA extend to federally recognized tribal nations—not to people who identify racially as Indian.

The outcome of Brackeen v. Haaland carries implications that extend far beyond a single custody decision. Tribal nations and people who support the idea of tribal sovereignty worry that an unfavorable decision will undermine the entire principle of tribal sovereignty and threaten the ability of tribes to define their own criteria for citizenship, the self-determination of tribal boundaries, and the administration of tribal programs. On the other side, business interests (which have provided pro-bono legal services for the Brackeens throughout their custody case), private adoption agencies, and some religious groups believe that their interests will be served if the Court overturns Brackeen. Following oral arguments in November 2022, the outcome of the case remains uncertain.

This week’s Current Events resources examine the the Indian Child Welfare Act, tribal sovereignty and a Supreme Court case that may fundamentally change both ICWA and tribal sovereignty. The resources shared provide information and context to the details of the Brackeen case, as well as how the history of U.S. relations with tribal nations.

Essential Questions, Vocabulary & Extend the Resources:

What is tribal sovereignty?
Where did the principle of tribal sovereignty originate, and why is it so vital to Indian tribes?
What circumstances and events in the historical relationship between Indian tribes and the U.S. government contributed to the passage of the Indian Child Welfare Act?
Which key parties claim standing in Brackeen v. Haaland, and what is the basis for each individual’s/group’s claims?
Why is the classification of Indians by race vs. nation so central to whether Brackeen v. Haaland may overturn the Indian Child Welfare Act?
In your opinion, how should the Supreme Court appropriately balance the needs of the child, the interests of the prospective adoptive family, and the principle set forth in ICWA that gives custodial priority to families and Indian tribes in child welfare cases?

Click here for a hardcopy of the Essential Questions and Indian Child Welfare Act Vocabulary

Click here for a hardcopy of Extension Activities CLP suggests implementing with this content