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Tag: Constitution

  • U.S. Supreme Court Holds the Indian Child Welfare Act Is Constitutional

    This entry was contributed by Sara DePasquale on June 20, 2023 at 4:10 pm and is filed under Child Welfare Law.

    The Indian Child Welfare Act (ICWA) was enacted by Congress in 1978 and applies to designated “child custody proceedings” that involve an “Indian child.” An Indian child is a person who is under 18 years old and is either (1) a member of a federally recognized Indian tribe or (2) eligible for membership in a federally recognized Indian tribe and a biological child of a member of a federally recognized Indian tribe. 25 U.S.C. 1903(4). There are four types of child custody proceedings that are governed by ICWA: (1) foster care placements, (2) preadoptive placements, (3) termination of parental rights (TPR), and (4) adoptions.

    The purpose of ICWA is to set minimal federal standards for four types of child custody proceedings that involve the removal and placement of Indian children. Through ICWA, Congress sought to address “an alarmingly high percentage of Indian families that are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies.” 25 U.S.C. 1901(4). ICWA encompasses a national policy of protecting the best interests of Indian children and promoting the stability and security of Indian tribes and families. 25 U.S.C. 1902. ICWA has many provisions that apply to abuse, neglect, dependency; TPR; guardianship of minors; and adoptions of minors (including stepparent adoptions) when an Indian child is involved. (For more information about ICWA and its requirements, see Chapter 13, section 13.2 of the A/N/D-TPR Manual here.)

    In 2019, ICWA was challenged as and held to be unconstitutional because it exceeded federal authority, infringed on state sovereignty, and discriminated on race. That federal district court opinion was appealed and ultimately heard by the U.S. Supreme Court. Last Thursday, in a 7-2 opinion, the U.S. Supreme Court rejected every challenge made by the petitioners in Haaland v. Brackeen, 599 U.S. ___ (2023) and held that ICWA is constitutional. This opinion has two concurrences and two dissents, all of which are discussed below. Continue Reading

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