Tribes throughout the nation and all across Alaska are celebrating the US Supreme Court’s decision to uphold the Indian Child Welfare Act. In a 7-2 vote, the court rejected claims that ICWA is racist and unconstitutional.
And with the Court’s decision to back the right of tribes to oversee child custody cases, came a collective sigh of relief among Alaska Native leaders.
“This is something we care deeply about,” said Julie Kitka, president of the Alaska Federation of Natives (AFN).
Kitka says AFN has been involved in this fight for many years, because a lot more was a stake beyond protecting Native children.
“A lot of threads of Federal Indian law, the authority for the Congress to deal with Alaska Natives, Native Americans, derives from that,” she said.
Had efforts to overturn ICWA succeeded, Kitka says tribal sovereignty could have seen widespread erosion. It also could have undermined AFN’s progress in working with the state to build a better partnership with tribes in child custody matters.
ICWA, a law that was passed in 1975, puts tribes in the driver’s seat in child custody cases. It requires that American Indian and Alaska Native children be placed within their extended family, tribe or other Natives, whenever possible, so they can maintain cultural ties.
“Today's decision represents a huge win for tribes throughout the nation and reaffirms tribal sovereignty,” said Brian Ridley, chairman of the Tanana Chiefs Conference executive board.
Ridley says TCC’s programs to support tribal adoptions and foster care placements have been a huge success story.
Ridley said it’s taken many years of work to reach a point where the tribe has been able to fully realize the mission of ICWA -- protect Native kids and keep them in Native families
The Association of Village Council Presidents (AVCP), which represents tribes in Southwest Alaska, concurred – and in a statement said ICWA has been the gold standard of child welfare.
But during a US Supreme Court hearing last year, Matthew McGill, an attorney representing the Brackeens, a white family fighting to adopt a Native child, argued that ICWA had discriminated against them – and put the interests of the tribe over the needs of the child.
“That means each year hundreds, if not thousands of Indian children are placed in non-Indian foster homes. And sometimes there, they bond with those families,” McGill said in his oral arguments, which he talked about the harm to the child when the tribe intervenes to enforce ICWA.
Along with the Brackeens, several states and white families seeking to adopt Native children also joined the fight to overturn ICWA. They claimed ICWA was unconstitutional and racist, because it gave tribes preference.
Tribes have argued that they have a longstanding political relationship with the government, and are not a racial classification, which the Court affirmed. Had ICWA been overturned, the status of this relationship might have changed and potentially weakened tribal sovereignty in other areas.
Justice Amy Coney Barrett wrote the majority opinion, which leaves the federal law intact. She cited more than a century of precedent and the plaintiff’s lack of standing on the issues.
In his dissenting opinion, Justice Clarence Thomas wrote that the Court had allowed the federal government to overstep its powers by displacing state authority, to regulate child custody proceedings.
The State of Alaska stayed neutral on ICWA and did not support the lawsuit, nor the tribes. Attorney General Treg Taylor said it was a difficult decision not to join tribes – but says the state believed other entities would give the Court all the information it needed to make a decision.
In a statement, Taylor said, “It does not appear that anything has been changed, and the decision underscores our commitment to partnering with Tribes to improve outcomes for tribal children and families.”
Richard Peterson, President of Tlingit and Haida, which represents Southeast Alaska and is the largest tribal group in the state, says he’s still disappointed that the state did not join more than 500 tribes to fight for ICWA.
“I applaud that statement. I agree with that statement, but their actions really don’t back that up,” Peterson said in response to the Attorney General, “If that's how they felt, they would have signed on and supported tribes in this ICWA battle.”
Despite the state’s lack of support, Peterson says the tribes prevailed.
“Our sovereignty continues on and on again in these court cases, to be reaffirmed in court,” Peterson said. “It's always scary when you go to court, but we keep winning, because we're on the right side.”
Peterson said the timing of the decision couldn’t be better. It came as a group of Polynesian canoers prepared to depart Juneau on a global voyage. He says both Polynesian and Alaska Native cultures have struggled to maintain their sovereignty.
“I'm just full of excitement and love. This couldn't have happened on a better day,” Peterson said.
Peterson says the Polynesian voyagers are on a mission to spread the word about the strength and beauty of Indigenous cultures, which ICWA was created to protect.
Read the decision: https://www.supremecourt.gov/opinions/22pdf/21-376_7l48.pdf
