The Supreme Court leaves Indian Child Welfare Act intact

In a major victory for Native American rights, the U.S. Supreme Court on Thursday upheld key provisions of the Indian Child Welfare Act, a law enacted 45 years ago to remedy decades of past government abuse.

By a 7-2 vote, the court ruled that the law does not impermissibly impose a federal mandate on traditionally state-regulated areas of power.

Writing for the court majority, Justice Amy Coney Barrett pointed to two centuries of precedent that have established a broad congressional right to legislate on Indian affairs, including family law matters.

“The Constitution does not erect a firewall around family law,” she said. “On the contrary,” she wrote, “we have not hesitated to find conflicting state family law pre-empted” by federal law.

Background on the 1978 law

The Indian Child Welfare Act, known as ICWA, was enacted in 1978 after a congressional investigation found that in the 1950s, ’60s and ’70s over one-third of all Native children had been removed from their homes, some forcibly, and placed with non-Indian families and institutions with no ties to the tribes. To ensure that would never happen again, the law established three preferences for the placement of Native children when they are adopted or put in foster care: the first preference is for placement with the child’s extended family, then to other members of the tribe, and if neither of those is available, to members of another tribe.

Those preferences were challenged by the state of Texas and by non-Indian adoptive parents. They argued first that the law unconstitutionally supplanted the core functions states and their traditional role in family law matters, and second, that the adoption preferences were an unconstitutional racial classification.

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