US Supreme Court Decides To Uphold Indian Child Welfare Act

Tribal leaders are calling it a 'major victory' for Indian country: a decision today from the United States Supreme Court upholding the 1978 Indian Child Welfare Act (ICWA).

“Today, the Supreme Court once again ruled that ICWA, heralded as the gold standard in child welfare for over 40 years, is constitutional," Cherokee Nation Principal Chief Chuck Hoskin Jr. said in a statement. "Today’s decision is a major victory for Native tribes, children, and the future of our culture and heritage."

This case, Haaland v. Brackeen, hinged in part on the claim made by the petitioners that the law, which gives preference to Native American families in adoption proceedings and foster care involving Native children, is unconstitutional because it’s based on race.

Tribal members and advocates couldn’t disagree more.

"I couldn’t, because it doesn’t have anything to do with race," said Congressman Tom Cole (R-OK4), a member of the Chickasaw Nation.

Representative Cole, commenting on the ruling in an interview Thursday afternoon, says many people simply don't understand that tribes are sovereign governments, not racial units "any more than you would say, being an Englishman versus being a Frenchman, or being German is a matter of race -- it’s not, it’s a matter of a political and cultural identity."

And given the federal government's shameful history of trying to strip that identity from Native children, Cole says, it follows that tribes have a legitimate interest in keeping their children within the tribe, if possible.

"Because, you lose your children, you lose your future," Cole said.

Writing in dissent, Justice Samuel Alito said the majority opinion "reserves the rights and interests of these children and their parents.”

But seven justices -- conservative and liberal -- disagreed. “The issues are complicated," wrote Justice Amy Coney Barrett. "But the bottom line is that we reject all of petitioners’ challenges to the statute, some on the merits and others for lack of standing.”

In the end, the majority did not even address the merits of the petitioners' arguments related to race and placement preferences, asserting that they lacked standing to raise the issue.

Cole says the broad ideological support for ICWA on the Court bodes well for Native America, as it suggests a growing understanding, he says, of the unique status of tribes.

"And that’s important every place in the country, but it’s probably more important in Oklahoma than any other place in the country with the possible exception of Alaska," Rep. Cole opined. "Because we have more Native Americans than any other state as a percentage of our population."