Haaland v. Brackeen Ruling Backs Integrity of Native Families

The Haaland v. Brackeen US Supreme Court decision has major implications. Aside from the more obvious victory for the native American people—the court recognizing that states generally may not supersede federal dealings with Tribes—this decision impacts both Native children and non-Native children and their families.

Congress passed the Indian Child Welfare Act in the 1970s to stop a horrific practice of taking native children from their families for purposes of assimilating them. The practice, which went on for decades in the early 1900s, intended to erase cultural, ethnic, and linguistic identities from Native children. Essential to that goal was a presumption that Native children would be better off away from their native parents and families.

Justice Neil Gorsuch noted from the history that “the warm reciprocal affection existing between parents and children” was “among the strongest characteristics of the Indian nature.” Officials set out to eliminate it by dissolving Indian families. During some of the darkest days in US history, Native children were abducted from their families by force (even while mothers desperately tried to hide them from soldiers), sent into boarding schools (and eventually non-Native homes) that purposefully intended to end tribal existence. In many of these boarding schools the Native children were routinely abused after the trauma of being taken from their parents.

As Gorsuch’s concurring opinion so poignantly tells, this is why Congress built an infrastructure in the ICWA to protect Native children from this longstanding practice of being taken away from their families. If the ICWA had been struck down as unconstitutional, individual Native children would have risked being stripped from their communities and “assimilated” (or as the American Academy of Pediatrics said in its brief, potentially “traumatized”).

There would have been another profound trauma, however, to the Native tribes themselves, as children are the future of the Tribes (and of us all). As Congress said, “there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children.” And as Justice Ketanji Brown Jackson stated during oral arguments, there isn’t much more that is wrapped up in the flourishing of political community than its children. Thankfully, a 7-2 majority recognized Congress’s plenary power and protective interest in relationship to the Tribes and the preservation of Tribal identity.

In addition, the well-being of non-native children was at stake too. The Casey Family Program brief articulates this well, saying that the ICWA became the gold standard over the past 40 years for child welfare more generally. That is because the ICWA articulates the commonsense notion that children should be kept as close to their family and kinship ties as possible (if removal from their parents is necessary.

Studies show that when children are kept close to kin, they are better off. If the ICWA had been struck down, that gold standard of keeping completely innocent children as close to loved ones as safely possible would have been undermined.

The case is Haaland v. Brackeen, No. 21-376, U.S. June 15, 2023, Court Opinion.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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Stephanie Acosta Inks is a visiting lecturer at Georgetown Law, where she teaches about law, religion, and family law.

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