On June 15, we exhaled relief when the U.S. Supreme Court upheld the constitutionality of the Indian Child Welfare Act by a 7-2 vote in a case addressing sovereignty in Native children adoptions. The court majority found that the ICWA does not improperly impose federal mandate on traditionally state-regulated areas of power.
The high court’s decision was right: No dismantling of ICWA. The word “race” is not in the original law. But this legal challenge was definitely all about race.
SCOTUS, though, left alone this question, whether ICWA’s preference for Native adoptive parents is an unconstitutional racial preference. Several non-Indigenous adoptive parents made that argument, saying social-service agencies discriminate on the basis of race.
ICWA was built around tribal sovereignty and the preservation of Native communities. ICWA established federal standards for removing Native children from their homes, requiring priority placement be given to Native families to reinforce the child’s tribal identity.
ICWA was symbolic, too, to remedy decades of past government abuse with welfare officials barging into homes to remove Native children without due process. Indigenous children were placed in treacherous boarding schools or with non-Native adoptive parents with no connection to the children’s tribes and peoples.
This is nothing new. We’ve heard the horrific stories of what now-grandparents endured. With U.S. Secretary of the Interior Deb Haaland’s support, many who lived through it all have taken their stories on the road across the U.S. Their stories are documented in films and literature.
Outside of adoptions, the race argument will come up again. Statutes could be challenged that give special preferences for Indian gaming, Indian contracting and Indian employment at the Bureau of Indian Affairs. These statutes were written to bring justice and fairness to Indian Country.
Justices Clarence Thomas’ 40-page dissent (yes, 40 is not a typo) argued that the Constitution’s Indian protections do not extend beyond matters of trade and commerce. Maybe this opinion will come in handy one day in any challenge to the legality of Indian businesses.
Critics of ICWA say the law is unevenly applied across states. Data is lacking. In 2016, the Obama administration finalized a rule that would have changed a collection method, with a category for tribal citizenship, and ways to track outcomes of ICWA-eligible cases. But the Trump administration withdrew these updated guidelines.
Also, ICWA applies to children eligible for tribal membership – not just enrolled members. Opponents say this makes it race-based.
Race will be at the center of other arguments the high court will hear, likely this summer, when it considers college admissions decision-making. SCOTUS’ decision will mostly impact highly selective schools with low admissions rates. No matter the outcome, we hope qualified students continue to apply to the schools of their dreams.
Thankfully, ICWA had already been codified into Colorado law. For now, in the Southwest, with ICWA intact, we’ll celebrate this win for Native American rights.
The opposing argument may have been about race. But the high court’s decision was all about sovereignty, which we appreciate.
