Supreme Court upholds Indian Child Welfare Act, citing Sovereignty Project Brief

July 13, 2023

In its recent decision, Haaland v. Brackeen, the United State Supreme Court upheld the constitutionality of the Indian Child Welfare Act (ICWA), a law that has been used to protect Native American families and tribal sovereignty. In a 7-2 decision, the Court rejected all the petitioners’ challenges with Justice Barrett writing the majority opinion and Justice Gorsuch authoring a concurrence joined by other justices. This decision reinforced the legal principle that Native American tribes are sovereign nations with the right to govern themselves and protect their children and families.

In Gorsuch’s concurrence, the NYU-Yale American Indian Sovereignty Project’s brief was cited three times, highlighting the importance of advocacy and legal support for Native American communities in defending their rights and interests. The Sovereignty Project filed its amicus brief on behalf of the American Historical Association (AHA) and the Organization of American Historians (OAH) with the assistance of Akin Gump. The AHA, founded in 1884, is the largest professional organization in the United States devoted to studying and promoting history and historical thinking, while the OAH is the largest scholarly organization devoted to the history of the United States and to promoting excellence in the scholarship, teaching, and presentation of that history. As stewards of history, the AHA and the OAH have an interest in ensuring that the Court accurately portrays American history and the scholarly findings of its members. In total, twenty-one law, graduate, and undergraduate students collaborated on this brief, including students from NYU School of Law, Yale University, Yale Law School, and Stanford Law School.

Beginning Fall 2021, students began researching ICWA in preparation for the acceptance of the case. After the Brackeen petition was granted, a small group assisted throughout the summer of 2022 with additional research and drafting.  

The Project’s brief details the historical understanding and practice of federal and state power over Indian Affairs and the welfare of Native children, as well as the historical context leading to and surrounding the enactment of ICWA. As described, the federal government has exercised authority over Native children since the founding of the United States, and efforts to provide education to Native children in the early nineteenth century grew into a nationwide program under which the federal government created and ran boarding schools. The brief further describes how states and local governments were complicit in the creation and operation of boarding schools: states and localities sold the land upon which the schools were built and provided services to the schools, seeing Native children as a source of additional revenue rather than a responsibility. 

The federal government came to realize that boarding schools were failed federal policy by the early-twentieth century. At this time, the federal government aimed to close the boarding schools and shift the care of Native families and children to programs administered at the state and local level. However, states initially refused to provide general welfare benefits to Native people and families—claiming that Native people were the exclusive responsibility of the federal government. In an attempt to entice states to provide welfare and educational services to Native children, the federal government entered into contracts with states to fund these programs directly. 

As the brief continues, states grudgingly took a more affirmative role in administering federal welfare programs for Native children. However, because states refused to incorporate Native people into their general welfare programs, they approached the care of Native children from a narrow and cost-saving perspective. To reduce welfare costs that the states thought were burdensome, states began to remove Native children from their homes at unprecedented rates.  The motivation was not race, but economics.  Because Native children required fewer welfare dollars when placed into a middle-class or wealthy foster or adoptive home, it was less expensive to place them in those homes than to support a Native family living in poverty—especially Native families to which states continued to refuse general welfare services and wraparound support. As a result, over the 1950s and 1960s, state and local governments removed 25-35% of Native children from their parents. Those Native children were raised in homes with no political, cultural, or linguistic connection to their nations.  

The alarming rate of removal of Native children eventually led to the passage of ICWA in 1978.  During roughly the same timeframe, the United States implemented the Vienna Convention on Consular Relations, which includes and codifies protections for the interests of foreign national children between sovereign states.  Both ICWA and the Vienna Convention require that state courts: identify children subject to the respective law; notify the child’s potential other nation (keeping records of that notice); collaborate with the representative of the child’s nation; and provide a guardian. States must recognize the constitutional underpinnings as they are necessary for the implementation and success of both laws. In addition, the Project’s brief highlights that ICWA must also be viewed against the complete historical record of federal and state power over Indian Affairs and the welfare of Native children. Such record demonstrates that the care and education of Native children falls squarely into the constitutional powers of Congress, and the Project was honored to support the AHA and the OAH in their position that the Supreme Court should uphold the challenged provisions of ICWA in full, which it did.

In her opinion, Justice Barrett discusses additional issues that the Sovereignty Project researched and briefed, including Congress’s power to legislate for Indian tribes and its “plenary and exclusive” power. Justice Barrett states that “plenary” does not mean unlimited; Congress’s authority must derive from the Constitution. She references and identifies several sources of power for Congress in Indian affairs, including the Indian Commerce Clause (Article I, §8, cl. 3), the Treaty Clause (Article II, §2, cl. 2), the trust relationship, and principles inherent in the Constitution’s structure that empower Congress to act in Indian affairs, as they were considered more a matter of military and foreign policy than domestic law at the founding.

Last, the Project researched for its amicus brief the implications of the anti-commandeering doctrine. The petitioners argue that ICWA exceeds Congress’s power and infringes on states’ authority over family law, as they claim that domestic relations are traditionally governed by state law and that federal power over Indians should not extend to family matters. Justice Barrett indicated that the Supreme Court has recognized that conflicting state family laws can be preempted when Congress validly legislates under its Article I powers. She notes, however, that the petitioners’ attempt to turn a general observation about Congress’s limited role in family law into a constitutional exemption is not valid; Justice Barrett calls the argument a “non starter.” The Sovereignty Project, within its amicus brief, stated that ICWA is best understood as analogous to contemporary laws that protected foreign national children in state courts, as federal policy innovations for child welfare more broadly included ICWA.

Supreme Court Associate Justice Neil Gorsuch penned a concurring opinion, specifically to add historical context. He wrote that ICWA was enacted in response to the mass removal of Indian children from their families during the 1950s, 1960s, and 1970s by state officials and private parties. This practice had devastating effects on children, parents, and the continued vitality of Tribes.

Gorsuch highlighted that Native American tribes were forced onto reservations and negotiated treaties with the United States that included education provisions. However, the federal government’s goals shifted to extinguishing tribal identity and assimilating Indians into broader society. They established Indian boarding schools that aimed to strip children of their cultural identity and assimilate them into mainstream American society. State officials played a key role in these efforts, enforcing attendance and returning runaway children. Gorsuch repeatedly cited the Sovereignty Project’s amicus brief, noting, for example, that Carlisle Indian Boarding School “was deeply enmeshed with local governments and their services,” and it was “expanded thanks to the Pennsylvania Legislature.” State officials played a key role in foiling those efforts. “[P]olice from a variety of jurisdictions” assisted in “captur[ing] and return[ing] runaway school children.” Sovereignty Project students, David Kerry and K.N. McCleary, provided research and memoranda that contributed specifically to this portion of the amicus brief.

Gorsuch further opined that, as federal boarding schools closed their doors and Indian children returned to the reservations, states with significant Native American populations found themselves facing new educational and welfare responsibilities. He again cited the Sovereignty Project’s amicus brief noting that states only reluctant accepted responsibility for their education and welfare, often justifying this by claiming that Native families and children were the exclusive responsibility of the federal government and that Native lands fell outside their state legislative authority to tax. Gorsuch also cited historian Margaret Jacobs, who was heavily cited within the Sovereignty Project’s amicus brief; Sovereignty Project student Olivia Guarna provided research and memoranda that contributed to this portion of the amicus brief. Gorsuch wrote that around this time, as fate would have it, “shifting racial ideologies and changing gender norms [had] led to an increased demand for Indian children” by adoptive couples. Gorsuch suggests that states could save money by promoting the adoption of Indian children by private families, which was a central claim of the Sovereignty Project’s amicus brief. ICWA was established to counter these policies and ensure the welfare and preservation of Native American families and tribes.

Throughout the case, the NYU-Yale American Indian Sovereignty Project played a crucial role by providing research and legal support through its amicus brief. By citing the Project’s work, the Court acknowledged the importance of advocacy and historical context in defending the rights and interests of Native American communities. The involvement of the NYU-Yale American Indian Sovereignty Project, supported by the AHA and OAH, highlighted the significance of accurate historical portrayal in these proceedings.

The collaborative efforts of the Project’s students contributed to the research and drafting of the amicus brief, ensuring that the Court considered the historical understanding of federal and state power over Indian affairs and the welfare of Native children.

Haaland v. Brackeen stands as a significant milestone in upholding the constitutionality of ICWA and safeguarding the rights of Native American families and tribal sovereignty. The Supreme Court’s decision reinforced the legal principle that Native American tribes are sovereign nations entitled to self-governance and protection of their children and families.