This article is being co-published with The Imprint, a national nonprofit news outlet covering child welfare and youth justice.
Shannon Smith has been an attorney handling Indian Child Welfare Act cases for decades, fighting for the rights of Indigenous children, their families, and tribes.
But last week, the longtime executive director of the Minneapolis-based ICWA Law Center received court news unparalleled in her career. Against all apparent odds — including a powerhouse legal team backing the plaintiffs and the most conservative U.S. Supreme Court in almost a century — the justices beat back constitutional challenges to the Indian Child Welfare Act (ICWA).
The 7-2 ruling fully upheld the 45-year law designed to keep Native children who can’t remain in their homes close to kin and tribal communities.
Smith wasn’t in a courtroom when the opinion came down. She was at her daughter’s college orientation, experiencing an entirely different set of high-stakes emotions. As a result, the full impact didn’t fully hit her until she finished reading the majority opinion, Smith said in an interview with The Imprint.
“There was a sense of pure happiness, but then a sense of almost wanting just to crumble and cry,” she said. “The tears came out of my body in a way I didn’t at all expect.”
The Supreme Court’s ruling in the Brackeen v. Haaland case — written by Justice Amy Coney Barrett, an adoptive mother of two children from Haiti — struck down legal challenges to the 1978 Indian Child Welfare Act brought by Texas and three foster families.
A clear majority on the nation’s highest court rejected the plaintiffs’ central claims that provisions of ICWA exceed Congress’ “plenary powers” to pass legislation governing tribal affairs while “commandeering” states to follow federal law.
Some observers, including tribal leaders, advocates and legal experts, were concerned about the potential of an equal protection decision favoring the plaintiffs, which could open up other areas of federal Indian law to similar challenges. Beyond the protections of Native children at stake, this could include anything from Indigenous healthcare rights, hunting, fishing or gaming rights and the ability to prosecute crimes by non-Natives occuring on Indigenous lands.
But the justices found the plaintiffs did not have standing, and therefore they did not rule on whether non-Native adoptive parents’ equal protection rights are violated when tribal members are prioritized in foster care and adoptive placements.
Overall, the opinion was a resounding affirmation of the rights of tribes — as nations within the United States — to their sovereignty. And the justices gave a clear nod to history.
ICWA emerged “as a direct response to the mass removal of Indian children from their families during the 1950s, 1960s, and 1970s by state officials and private parties,” Justice Neil Gorsuch wrote in his concurring opinion. He described that practice as “only the latest iteration of a much older policy of removing Indian children from their families.”
“In all its many forms, the dissolution of the Indian family has had devastating effects on children and parents alike,” he stated. “It has also presented an existential threat to the continued vitality of Tribes.”
Gorsuch reaffirmed ICWA’s constitutionality by concluding that in adopting the federal statute, “Congress exercised that lawful authority to secure the right of Indian parents to raise their families as they please; the right of Indian children to grow in their culture; and the right of Indian communities to resist fading into the twilight of history.”
In the conversation summarized below, Smith unpacks other key implications of the Brackeen v. Haaland ruling from her vantage point as head of the ICWA Law Center, which provides legal service and advocacy to hundreds of Indigenous families each year.
Smith does not foresee any immediate new challenges to the federal law, but said she believes the ruling has reinforced its absolute necessity and heightened awareness. That has steeled the resolve among ICWA defenders, including tribal leaders, scholars, historians, elders, and families of those impacted.
The conversation has been condensed and lightly edited for clarity and length.
A clear majority of the justices rejected the claim that ICWA violates Congress’ plenary powers to enact law in Indian Country, and states’ “anti-commandeering” protections. These were very firm rejections, extensively citing case law as precedent. Do you feel this is going to close the door pretty firmly on any future challenges based on these issues?
I would say yes — or it should. Those two issues were a way to get at the core of the relationship between the federal government and tribes, and to diminish tribal sovereignty. To me, those challenges in this case were not about the Indian Child Welfare Act. They were a way to get at the heart of tribal sovereignty.
The opinion is strong and I would be hopeful that would be the end. That being said, I know that people who want power, who want control, who want money, aren’t necessarily going to see it that way.
Was there a particular statement the court made that you believe will have a significant impact beyond the Brackeen v. Haaland ruling?
In Gorsuch’s opinion there was a paragraph where he was talking about, historically, the impact of boarding schools and the impact of adoption and how that has been used to destroy the child’s connection to their community, to their family and to their tribe. That sense of how important and absolutely critical this is in regards to connections struck me.
There is a line in the decision in regards to how families and tribes go to the court for justice, and they often walk away feeling that’s not what happened. That sense of the historical realities, and how that informs experiences now and how it shapes the future, means we now have an opportunity to uphold the promises, recognize the connections and recognize the importance of the future of tribes. The very essence of that is children.
Plaintiffs in Brackeen v. Haaland argued that ICWA violates the equal protection rights of non-Native adoptive parents, in this case, white couples seeking to adopt Indigenous children. The justices left the issue undecided, stating the parties did not have standing — their adoptions had all been finalized. How easy or difficult would it be for another plaintiff to achieve standing in a case like this?
As someone who is challenging ICWA, how they would frame the equal protection challenge would have to be a race-based argument. That’s fundamentally wrong, because ICWA is based on the political relationship between a child and their tribal communities.
The other challenge that makes it incredibly problematic in regards to challenging ICWA is that the argument would have to be premised on the idea that a non-Native individual — typically a white family, in these cases — has the right to adopt a child.
So, they have to prove or show that the harm is to them, that they wanted to adopt or they are entitled to an adopted child that’s not theirs. And because they can’t or because it’s difficult, or because they have to get tribal approval, that makes it more difficult for them and they are harmed because of that. They assert their entitlement or their right to adopt the child, that then, in turn, hurts the child.
So, it’s a really convoluted and difficult argument.
Maybe it’s a case that goes through a state court and is challenged or not finalized. But even if they get to the standing piece, it becomes incredibly difficult in regards to the premise of how that moves forward.
In the challenges we’ve seen, it’s often prospective adoptive parents asserting harm for a child who actually has more rights because of ICWA.
Are there any looming challenges to ICWA that attack the law differently than the case that has just been resolved?
There’s always going to be challenges for the very reasons we’ve talked about, like tribal sovereignty and the relationship between the federal government and tribes — which is something that, for whatever reason, is threatening to people who want their land, money, and power. Those challenges are looming because we’ve seen that through other cases.
There will be challenges. But ICWA provides us with an opportunity to do things in a really good way in the child welfare system. I’m hopeful we can come to a place of calm with ICWA so that we can be responsive to families in regards to chemical health, mental health needs, those who are impacted by violence, and experienced trauma, so we can really move forward to heal.
