The creation of Indian Child Welfare Act (ICWA) stemmed from the Devils Lake Sioux’s concern about the treatment they received by the county welfare officers in 1968. Children were regularly removed from their homes and placed into foster homes or adopted by non-native households. All rehoming was done without consultation from either tribal leaders or the community.

The Devils Lake Sioux reached out to the Association on American Indian Affairs (AAIA) for help. The AAIA was founded in 1923 to promote social, economic, and civic equality for American and Alaskan Natives. The events set in motion by the AAIA would culminate in the passing of the Indian Child Welfare Act of 1978.

A study conducted in 1969 and presented in 1974 by the AAIA found that in most states with large Native American populations 25% to 35% Native youth had been separated from their families. They also found that Native children were more likely to experience more out-of-home placement than non-native children.

The differential rates of Native kids varied by as much as 19 times the rate of non-native adoptions in Washington to 1.3 in Arizona. The foster home placement differential rates varied 15.7 times greater in North Dakota to 2.6 times greater in Arizona compared to non-native kids. Prior to the ICWA, approximately 75-80% of families living on reservations had at least one child taken by the foster care system.

            Subsequent studies conducted in 1974 and 1976 – at the request of the American Indian Policy Review Commission (AIPRC) – found similar discrepancies in the rate of placements. A task force also found in a report submitted to the AIPRC that confirmed these findings.

In a primary effort, the AAIA helped the Devils Lake Sioux community establish a tribal child welfare board which would make formal recommendations to tribal judges. AAIA employees, tribal leaders, and federal agency staff conducted discussions on how Native child problems could be solved by building the tribal governments’ capacity to meet the needs of children and their families.

In 1978, ICWA was passed. The act provides guidance to states regarding the handling of abuse, neglect, adoption, and rehoming of Native children and sets minimum standards for the handling of these cases.

            On June 15, 2023, the Supreme Court upheld ICWA 7-2 in Haaland vs Brackeen. (Haaland, Secretary Of The Interior, et al. v. Brackeen et al).

The case began in Texas when three couples of Non-Native descent were rejected in the adoption or fostering of children from Native American communities. The mother of the child that was eventually adopted by the main plaintiffs, Chad and Jennifer Brakeen, also was a plaintiff. Four tribes joined in the dispute to defend ICWA.

Federal District Court ruled in favor of the plaintiffs, claiming ICWA was unconstitutional. A three-judge panel of the U.S. Court of Appeals for the Fifth Circuit then reversed the decision. A full panel decision which partly affirmed and partly reversed the panel’s decision, prompted four different petitions for the Supreme Court to review the case. The Justices agreed to the case in February of 2022 and heard first arguments that November.

Justice Amy Coney Barrett began her majority opinion identifying the complexity of the issues in the case concluding that “the bottom line is that we reject all of [the] challenges to the statute, some on the merits and others for lack of standing.” She dismissed the contention that ICWA goes past the power given by the constitution for congress to “regulate commerce…with the Indian tribes.” Congress has broad, but not limitless, power to enact laws in regard to Native Americans, and though family law has traditionally been handled by the states, Justice Barrett notes, Congress possesses the ability to supersede that law as they did with ICWA.

Justice Barrett then rejected the challenger’s arguments that ICWA violated the 10th amendment’s “anti-commandeering” doctrine, which prohibits the federal government from forcing states to adopt or enforce federal law. Two of those arguments were in regard to provisions in ICWA which impose requirements in involuntary proceedings to put a child into foster care or terminate parental rights and a provision establishing placement preferences for Native children.

The challengers claimed the provisions required state and federal agencies to provide services which went against the 10th amendment. She identified the challengers’ argument as fundamentally flawed in that the requirements applied to “private individuals and agencies as well as government entities.”

The third anti-commandeering argument presented by the challengers also did nothing to persuade Justice Barrett. The argument was centered around the recordkeeping requirements ICWA has for state courts. The challengers claimed that Congress did not have the power to enlist the states for federal service for recordkeeping. However, the constitution allows for exactly that, as a “logical consequence of our system of ‘dual sovereignty’ in which state courts are required to apply federal law.”

According to her opinion, Texas did not have the right to challenge placement preferences because it had no rights within the equal protection clause.

Justice Neil Gorsuch, who has been the courts strongest supporter of Native American sovereignty during his six years, wrote a concurring opinion which was joined by Justices Sonya Sotomeyer and Ketanji Brown Jackson. In this opinion, Justice Gorsuch retold the extensive history that led to ICWA’s creation; including the federal government’s attempts to dismantle tribal identity and force assimilation through shipping Native children to boarding schools and pushing the adoption of Native children by non-Native homes.

He raved on the court's decision calling it, “further steps in the right direction.” He expressed hope the court would, “follow the implications of today’s decision where they lead and return us to the original bargain struck in the Constitution — and, with it, the respect for Indian sovereignty it entails.”

Justice Brett Kavanaugh wrote a brief concurring opinion in which he displayed that although he has support for Justice Barrett’s decision, the court had not made a decision on the matter of equal opportunity rights. “Under the Act,” he wrote, “a child in foster care or adoption proceedings may in some cases be denied a particular placement because of the child’s race — even if the placement is otherwise determined to be in the child’s best interests.” Kavanaugh concluded that the court can address those issues when they are “properly raised by a plaintiff with standing.”

Justice Clarence Thomas wrote a 40-page dissent where he characterized the dispute as forming from, “the Federal Government’s attempt to regulate child-welfare proceedings in state courts,” he continued saying that “should raise alarm bells.” In passing ICWA, Congress has invaded the domain of state power without authorization from the Constitution. He noted that the Supreme Court has never supported federal laws that regulate non-commercial activities by a citizen who exists solely under a state's jurisdiction because that person is Native.

Justice Samuel Alito wrote an 11-page dissent agreeing with Justice Thomas that Congress does not have the authority to enact the provisions of ICWA as disputed in the case, though from a different point of view.  He wrote that the provisions effectively nullify a state's ability to perform state child custody hearings in accordance with its own family relations policies.

In a statement released shortly after the hearing, Native American tribes involved in the case cheered for the ruling calling it a “major victory for Native tribes, children, and the future of our culture and heritage.” They also said that the decision was a broad affirmation of the rule of law and basic constitutional principles surrounding the relationship between Congress and Tribal Nations.