Indian Child Welfare Law and Tribal Sovereignty Under Scrutiny by Supreme Court


A law that places Native American children in foster homes or adoptive homes with tribal relatives has been challenged by a couple from white who want to adopt the Native American sister adopted in 2017 by their son.

Chad and Jennifer Brackeen from Texas were a white couple who adopted their Native American son. The Brackeens now believe that both their son and daughter would be happier if they were together.

The Navajo tribe argued in the case that custody should be given to a great-aunt who lives on a reservation. This would be consistent with the Indian Child Welfare Act of 1978 (ICWA), which stated that Native American children should always be placed with people of the same ethnicity.

This could be a violation of the 14th Amendment’s prohibition against racial discrimination. The Supreme Court has just heard oral arguments.


ICWA set minimum federal standards to remove native children from their families. It required state courts to notify tribes when an American Indian child is removed from their family. In foster and adoption placements preference should be given to the child’s extended family first, then other tribe members, and if neither, preference for the child to be placed with another tribe.

Although Native Americans are a distinct racial group in their own right, the government has always considered them to be a separate political entity. The Supreme Court will decide the boundaries of Native sovereignty, regardless of whether they agree.

Justice Gorsuch pointed out that Article One gives Congress the almost unlimited authority to act on behalf of Native Americans.

He said that the objections to ICWA are, in fact, objections to the policy decisions made by Congress in the law. He said that arguments are better dealt with “across the street.” This means that people who don’t like the law should contact Congress and not the courts.

Justice Samuel Alito acknowledged that “I honestly” had “had this great difficulty handling this Article I question.” Article I gives Congress the plenary power of legislating on behalf of Indians, as a political group. Alito stated that “if plenary means plenary then Congress can do what it wants It’s an easy case.” But, Alito said that “if there are limits, it is difficult for me to see where the limits are.”

Advocates who want to end ICWA have to realize that many other government programs would be affected if the 1978 Act was repealed.

Edwin Kneedler, the government’s Deputy Secretary General, stated that there were many other programs that could be canceled for Native Americans, including the one that provides Indians with health care. He also mentioned laws that protect American Indian lands and fishing rights. These laws, he said, are based upon treaties with the U.S. government.

However, conservative justices pointed out that the court has never accepted laws banning children from being adopted by parents from a different race. This would, they said, be clear evidence of discrimination based on race.

It was a great necessity to pass the ICWA in 1978. It may have outlived its usefulness. The Supreme Court should at least give it a thorough look. If they find that the law is being used to enforce race-based foster placements and adoptions, then it should be terminated.