Native American Tribes Respond to Supreme Court Granting Cert in Indian Child Welfare Act Case

Cherokee Nation Principal Chief Chuck Hoskin, Jr., Morongo Band of Mission Indians Chairman Charles Martin, Oneida Nation Chairman Tehassi Hill, and Quinault Indian Nation President Guy Capoeman issued the following statement in response to the U.S. Supreme Court’s decision to grant cert to Brackeen v. Haaland:

While the Fifth Circuit’s en banc decision last year upheld the Indian Child Welfare Act (ICWA) and once again affirmed its constitutionality, it wrongly ruled against key provisions of the law, including on active efforts and flawed claims of commandeering violations. We are glad to hear that the U.S. Supreme Court has granted cert to reexamine these aspects of the decision and look forward to once again seeing ICWA fully upheld, as courts have repeatedly done for over four decades.

As leaders of our respective tribes, we know the importance of keeping our children connected with their families, communities, and heritage. 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. We will never accept a return to a time when our children were forcibly removed from our communities and look forward to fighting for ICWA before the Court. We are confident that the Court will come down on the side of children, families and centuries of legal and constitutional precedent.

In 2017, individual plaintiffs Chad and Jennifer Brackeen, a couple from Texas, along with the state attorneys general in Texas, Louisiana, and Indiana, sued the U.S. Department of the Interior and former Secretary Ryan Zinke to challenge ICWA. In August 2019, the Fifth Circuit Court of Appeals reaffirmed that ICWA is constitutional. In October 2019, despite having their own adoption finalized, plaintiffs in Brackeen v. Bernhardt continued their attacks on the law and requested an en banc rehearing before the Fifth Circuit Court of Appeals. In April 2021, the Fifth Circuit upheld important aspects of ICWA that serve the best interests of Indian children and tribal families.

ICWA has broad, bipartisan support from tribes, states, members of Congress, and presidential administrations, which have recognized that the law is an appropriate exercise of Congress’s authority to legislate in the field of Indian affairs and does not violate the Tenth Amendment or equal protection provisions of the Constitution. Tribes and tribal organizations, child welfare experts, and dozens of state attorneys general from across the political spectrum filed briefs with the court urging it to protect children and follow decades of precedent by upholding ICWA.