JUNE 2023

Supreme Court Decision

The Supreme Court recently ruled by a 7 to 2 decision on the Indian Child Welfare Act (ICWA).  This decision could certainly impact Native American families in Sonoma County.  The ICWA was enacted in 1978 and states that when a Native child is placed in an adoptive home, the priority goes to parents who are also Native American even if they’re from a different tribe. A couple who are not Native Americans had taken in two Navajo siblings.  The couple live in Texas.  However, the Navajo Nation asked for the children to be moved to a different state, into potentially unrelated Native households, even over the objection of their biological parents who testified on behalf of the couple.

The ICWA was challenged by a group of parents and the state of Texas, arguing that the ICWA exceeds Congress’s authority to “regulate Commerce” with Indian tribes  The suit also argued that the ICWA oversteps state power on family law and that it commandeers state courts and officials.  The court rejected these arguments.  Writing for the majority, Justice Amy Coney Barrett stated: “Congress’s power to legislate with respect to Indians is well established and broad.” 

Justices Thomas and Alito wrote separate dissents against the ICWA stating that the Act is an unconstitutional intrusion on federalism and state police powers. 

Reviewing all of the statements regarding this case it appears that the tribes have more power than the parents.  The question asked is:  How can tribal intrusion based entirely on ancestry and to the detriment of individual children not be a violation of the Constitution’s right to equal protection?

Look for further cases regarding this issue. 

Courage is what it takes to stand up and speak.  Courage is also what it takes to sit down and listen.                                                                                              Winston Churchill

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