The U.S. Supreme Court on Thursday upheld the Indian Child Welfare Act, which requires child welfare departments to prioritize adoption and foster care placement of Indigenous children with family or extended kin.
Haaland v. Brackeen questioned the constitutionality of this 1978 law, which also requires child welfare departments to give Native nations notice as soon as an investigation begins into a Native family to determine if the child needs services or removal.
The case involved three children with Native heritage and white families that either wanted to adopt them or were fostering them. They challenged the Indian Child Welfare Act as unconstitutional using several different arguments, including alleging that Congress lacks authority in those decisions.
The 7-2 decision, written by Amy Coney Barrett, lifts an especially sharp pen against the state of Texas for claiming with “creative arguments” that the ICWA harms Texas by requiring it to break its promise to its citizens that it will be “colorblind” in child-custody proceedings. Barrett writes that if this argument were legitimate, then states would be able to bring constitutional challenges every time they have to enforce a federal law.
She goes on, “Texas tries to finesse this problem by characterizing ICWA as a ‘fiscal trap,’ forcing it to discriminate against its citizens or lose federal funds.” Barrett dismisses this argument as vague and disconnected from reality.