The Supreme Court scheduled a case hearing on Wednesday that could strike another blow to the sovereignty of American Indian tribes.
The origins of Haaland V. Brackeen date before 2017 and stem from questions about the Indian Child Welfare Act (ICWA) being constitutionally sound.
The case began when a married couple from Texas, the Brackeens – that had previously fostered several children from Cherokee Nation – were hoping to adopt a child from a Native community. After fostering a child for over a year, the couple found their opportunity with a baby boy from Cherokee Nation. The Cherokee child's birth mother struggled with drug addiction and poverty for much of her life and gave her blessing for the adoption, thus beginning the situation's complexities.
ICWA was initially published on Nov. 8, 1978 and provides Native nations with the ability to find a family within their community when a child’s safety is at risk within their home. The law's overall goal was to ensure that Native children were not forced to grow up outside of their culture. For Native people who still remember the horrors of Indian boarding schools, the law was just; the law was fair. Cherokee Nation exercised their right in the instance of the Brackeens, finding a family within their community willing to adopt the Cherokee child.
The Brackeens, however, would not give up and found support from the Attorney General of Texas and others who, like them, wanted to adopt Native children. The couple chose to fight the law; the question for many was, would the law win?
“We know the importance of keeping our children connected with their families, communities and heritage," said Cherokee Nation Principal Chief Chuck Hoskin Jr. "ICWA has proven itself as the gold standard of child welfare law which is why both Republican and Democratic administrations, tribes and tribal organizations, and child welfare experts continue to defend it.”
The first gavel swung in Aug. 2018, when a district court ruled ICWA unconstitutional, referencing that the law treats Native children as a different race and citing equal protection, the Tenth Amendment and the nondelegation doctrine. All parties filed appeals to the United States Court of Appeals for the Fifth Circuit. A decision was finally rendered in 2021, finding that while some parts of ICWA are constitutional, others were not. For Indian Country and the Brackeens, as well as others closely monitoring the situation, Wednesday may mark the last stop on a long train ride.
Over 180 of the 574 federally recognized tribes have joined the fight, creating three amicus – a word derived from the Latin term “friends of the court” – briefs. An amicus brief is most typically filed by those who are not parties to the decision but may or will be impacted by the decision in a case.
“The range of accusations the plaintiffs have shared alleging ICWA’s lack of constitutionality all fail under legal scrutiny,” said Cherokee Nation Principal Chief Chuck Hoskin Jr. in a statement presented Oct. 17 during a roundtable discussion with legal experts and other tribal leaders. “So, for the court to overturn ICWA in this case would be a devastating blow not just to the welfare of our children, but to congressional authority, legal precedent and to the basic foundations of federal Indian law.”
As the Supreme Court weighs its opinion, Indian Country collectively holds its breath. For the Brackeens and others, the attack on ICWA may feel like the right decision; for Indian Country, it is just another attack on sovereignty.