The Supreme Court, ICWA, and Indian Law Precedents
By Karin Lund (The Blake School)
Issue I: Federal Indian Law
The most high-profile Indian law case the Supreme Court has on its docket for the October 2022 Term is Brackeen v. Haaland. The case will determine the future of the Indian Child Welfare Act (ICWA) as the Court examines broad and fundamental questions relating to how Indians are and can be classified under federal law and how federal and state law interact on issues dealing with Native law.
In 1831, the Supreme Court determined in Cherokee Nation v. Georgia that Indian nations were to be recognized as sovereign states “not owing allegiance to the United States, nor to any State of this union, nor to any prince, potentate or State, other than their own.”  Through the passing of this decision, the United States defined its relationship with Indian communities, the unique role of Indian communities residing within the United States, and that they were to have specific responsibilities and liberties as a sovereign nation. About a century-and-a-half later, the Indian Child Welfare Act of 1978 came into law to preserve Indian culture among separated children living on tribal lands by promoting their adoption by either extended family members or other members of their Indian community. However, in cases such as Brackeen v. Halaand, opposing individuals and states have put forth arguments stating that; 1) the ICWA is unconstitutional because it violates the 10th Amendment, which prohibits commandeering by the federal government to state governments, and 2) that it discriminates against race and ethnicity by creating distinctions of parties capable of adoption.
Numerous factors are essential in considering whether the ICWA should be deemed constitutional, the first being whether the United States’ duty of protection includes preserving Native American culture and preventing assimilation. By allowing U.S. State Courts to determine the adoptive parents of separated Indian children, could that be considered forced assimilation into another culture and an automatic loss of Native American culture for the child? Since it is apparent that no restrictions exist in, for instance, the adoption of Jewish children by non-Jewish adoptive parents, what makes the legal process of adoption with members of a sovereign state differentiated from within residing citizens of the United States?
Furthermore, in 1886’s U.S. v. Kagama, Congress was determined to have plenary power over Indian affairs.  However, it is essential to consider whether this broad term applies to situations where, by exercising such executive power, the federal government strips states of their typical roles; states usually address adoption laws. Although Congress is given the plenary power to manage all aspects that affect individuals residing in sovereign tribal nations, how must a situation be addressed if it additionally impacts citizens of the United States?
Through the federal government’s deferral to local courts and their overriding of the state’s typical role in adoption decisions, the government is essentially outsourcing matters to local tribal courts. While the ICWA supports the beliefs outlined in the Indian Self-Determination and Education Act of 1975, issues of to what extent Congress’ plenary applies and an emphasis on how legislation with a sovereign state varies from national cases are beneficial to consider as recent legislation challenges the constitutionality of this Act.
Links for Further Reading:
Oral Argument Recording on C-Span:
Resources Related to the Fifth Circuit’s 325 page en banc opinion on the issue (to which the Supreme Court granted certiorari):
The Fifth Circuit’s per curiam order breaking down their resolution of the issue: Brackeen v. Haaland, No. 18-11479 (5th Cir. 2021)
 30 U.S. (5 Pet.) at 3 (1831) (Citing a bill filed on behalf of the Cherokees).
 118 U.S. 375 (1886).