The U.S. Supreme Court in Washington, D.C. (Seth Tupper/South Dakota Searchlight)
After the U.S. Supreme Court upheld the Indian Child Welfare Act in a 7-2 vote released Thursday, Native American advocates in South Dakota applauded the decision and said the state should go further to protect Native children.
ICWA is a 1978 federal law giving preference to Native tribes in the case of foster care placement and adoption. The law was in response to high rates of family separation in Native communities, and intended to keep removed children in Native communities.
Before ICWA was adopted, between 25% to 35% of all Native American children were being taken from their homes and placed with adoptive families, foster care or boarding schools.
Sisseton Wahpeton Oyate Chairman J. Garret Renville was emotional following the news. The decision for him means tribes can strengthen their communities.
“I think everyone in Indian Country has some sort of personal story that ties us to ICWA,” Renville said. “We might have a relative or parent, someone who has gone through the system at some point in their life that’s been removed from the community. Sometimes it takes most of that person’s life, but they eventually come back searching for their identity, where they come from and who their family is. That reconnects them not just to the family left behind, but their homeland and their people and culture.”
While Native children are still overrepresented in the foster care system in South Dakota, other tribal leaders and organizations also celebrated the decision, saying it reaffirmed tribal sovereignty and protections for Native children.
What was at stake in the case
The case, Brackeen v. Haaland, centered around a white Texas couple, Chad and Jennifer Brackeen, who challenged the law’s preference for Native tribes when American Indian children are adopted, saying it is racial discrimination and forces states to carry out federal mandates.
The decision means that, according to a majority of the justices, the law does not discriminate on the basis of race and does not impose federal mandates on state-regulated areas of power.
The court rejected all of the challenges to ICWA, “some on the merits and others for lack of standing,” Justice Amy Coney Barrett wrote in her majority opinion. Justices Clarence Thomas and Samuel Alito dissented.
The majority opinion cited over a century of precedent that classifies Native Americans as a political, not racial, group.
Alito in his dissent criticized ICWA, saying the federal law conflicts with state laws.
“Decisions about child custody, foster care, and adoption are core state functions. The paramount concern in these cases has long been the ‘best interests’ of the children involved,” Alito wrote. “But in many cases, provisions of the Indian Child Welfare Act (ICWA) compel actions that conflict with this fundamental state policy, subordinating what family-court judges — and often biological parents — determine to be in the best interest of a child to what Congress believed is in the best interest of a tribe.”
Justice Neil Gorsuch in a concurring opinion joined by Justices Sonia Sotomayor and Ketanji Brown Jackson said he was “pleased to join the Court’s opinion in full,” adding that he wanted to note the historical significance of the opinion.
“The Indian Child Welfare Act did not emerge from a vacuum. It came 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,” Gorsuch wrote. “In all its many forms, the dissolution of the Indian family has had devastating effects on children and parents alike. It has also presented an existential threat to the continued vitality of Tribes — something many federal and state officials over the years saw as a feature, not as a flaw.”
Decision reaffirms Indian child welfare protections, tribal sovereignty
Tribal leaders, organizations and legislators across South Dakota praised the decision.
State Sen. Red Dawn Foster, D-Pine Ridge, introduced a failed bill during the 2023 legislative session to establish a task force addressing the welfare of Indian children in South Dakota. Foster said the Supreme Court decision was a cause to celebrate, “reaffirming the protections of Indian children and a great day for reaffirming tribal sovereignty.”
“This decision should finally put an end to the baseless attacks on the Indian Child Welfare Act as a race-based preference by upholding tribal sovereignty and reaffirming tribes are distinct political entities whose inherent sovereignty predates the United States,” Foster said in a text message.
Foster’s task force would have worked to identify why Native children are overrepresented in South Dakota’s foster care system despite federal ICWA protections for the last 45 years. Her goal is to add support mechanisms to the system to reassure ICWA’s standing and support reunification efforts for Native families.
The ICWA task force bill passed the Senate but failed 26-42 in the House. In response, some tribal nations planned to create their own task force. The Oglala Sioux Tribe established the OST ICWA and Child Protective Services task force earlier this year and is working to study the issue. The state has been invited to participate.
The future of ICWA in South Dakota
More than half the state’s foster children are Native American, even though Native children make up only 12% of the children in South Dakota. Native American children are nearly three times as likely to be in foster care as other children, according to a 2020 Annie E. Casey Foundation study.
And more than 700 Native American children — or about one of every 40 living in South Dakota — experienced the termination of their parents’ rights from 2017 to 2021, according to a ProPublica analysis of the National Child Abuse and Neglect Data System removal records. That was one of the highest rates of Native parental termination in the country and nearly 13 times the rate for white children in the state.
“ICWA only works if you follow it,” Marcia Zug, a professor of family law at the University of South Carolina School of Law, told ProPublica.
Two other ICWA bills were introduced by Rep. Peri Pourier, D-Rapid City, during the 2023 legislative session, which would have codified aspects of ICWA protections in state law. They would have better defined aspects of ICWA such as “active efforts,” ensuring measures to provide transportation, drug counseling, parent classes, and other efforts were made by the state.
One opponent to the ICWA bills, Rep. Tony Venhuizen, R-Sioux Falls, said on the House floor that if the bills became state law and the Supreme Court found ICWA unconstitutional, then the state would have passed potentially unconstitutional laws.
We must do more to strengthen families of tribal nations, which will require collaborative work from all levels, including tribal and state leaders and the citizens thereof.
– State Rep. Peri Pourier, D-Rapid City
The impending Supreme Court decision was “one of the biggest hurdles” to pass the three bills during session, said Jessica Morson, Flandreau Santee Sioux Tribe ICWA administrator and chairwoman of the South Dakota ICWA Coalition.
“The disproportionate rates of separation should be heartbreaking to every South Dakota citizen,” Morson said. “It doesn’t matter the skin color or origin or anything — we all live in this state. When you look at those numbers you have to think: What is happening? There is something there that’s not right, and the fact that lawmakers don’t want to look at that is disheartening to me and the child welfare system as a whole.”
“Now,” Morson said, “there is no reason to hold off on anything.”
Six states enacted their own ICWA laws codifying the federal law either in part or whole before 2022, when the Brackeens petitioned the Supreme Court. Several other states codified ICWA in their state laws earlier in 2023, in preparation for the Supreme Court’s decision.
Venhuizen told South Dakota Searchlight after the Supreme Court decision was published that it still doesn’t make sense to pass the two bills that would codify aspects of the ICWA protections in South Dakota law.
“At this point, I don’t see why there’d be any need for state legislation,” Venhuizen said. “… One of the fears of a state law was that we’d pass a state law similar to ICWA but not the same. Having both in force could cause confusion.”
Venhuizen added that he believes the ruling takes away the opportunity for the Legislature to make improvements or change ICWA on a state level because federal law preempts state law.
South Dakota established an ICWA task force in the early 2000s to study the state’s shortcomings at the time and released a list of recommendations for improvement in the state. Foster said her plans to reintroduce an ICWA task force bill will depend on the outcomes and progress made in the Oglala Sioux Tribe ICWA and Child Protective Services task force.
Morson plans to work with Pourier and other legislators in the upcoming session, which starts in January, to reintroduce the bills that would better define pieces of ICWA in the state.
“It remains clear,” Pourier said in a statement. “We must do more to strengthen families of tribal nations, which will require collaborative work from all levels, including tribal and state leaders and the citizens thereof.”
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