Indigenous Minnesotans, advocates celebrate U.S. Supreme Court ruling on Indian Child Welfare Act

The U.S. Supreme Court on Thursday upheld the Indian Child Welfare Act and its protections for Native American children, a ruling that was celebrated by Indigenous Minnesotans, child welfare leaders and legal experts.

The ruling is a victory for tribes that worried erosion of the 45-year-old law would threaten Indian families and culture, and potentially have larger implications for tribal sovereignty.

"I'm grateful for all the people who have told their stories over the decades to get us to this place, a decision that recognizes our sovereignty and protects our right to raise our babies," Lt. Gov. Peggy Flanagan, a member of the White Earth Band of Ojibwe and Minnesota's first Native statewide elected official, said in a statement.

The law was passed in 1978 in response to the longstanding U.S. practice of removing Indian children from their families and placing them in boarding schools or in white-family foster homes. The law requires state child welfare agencies to notify families if an Indian child is removed from a home and prioritizes placement with a child's extended family or other tribal members.

The high court took up Haaland v. Brackeen in November, after white foster families challenged the federal law, arguing that it is race-based and violates the Constitution's equal protection guarantee. Minnesota couple Danielle and Jason Clifford were one of three plaintiffs at the center of the case. An attorney representing them did not respond to a request for comment Thursday.

The court ruled 7 to 2 in favor of upholding the law, with Justices Clarence Thomas and Samuel Alito dissenting.

"In sum, Congress's power to legislate with respect to Indians is well established and broad," Justice Amy Coney Barrett wrote in the majority opinion.

All of Indian Country rejoiced when the ruling came down Thursday morning, said Prof. Angelique EagleWoman, director of the Native American Law and Sovereignty Institute at Mitchell Hamline School of Law.

The decision stands on the foundation of prior U.S. Supreme Court Indian child welfare rulings that recognized congressional authority to pass laws on tribal relations, dating to the 1790s, she said.

"It should signal that these kinds of litigation tactics and arguments are frivolous and a waste of time, money and judicial research," EagleWoman said.

The makeup of the conservative-leaning court and its decisions over the past year terrified tribal members during the monthslong wait for a decision, said Indigenous Peoples Task Force Executive Director Sharon Day, who was placed in foster care for three years as a small child.

"There was no reason for us to be placed in foster care. I know firsthand the damage that does, and I'm just so grateful that they've sought to do something right," Day said.

Despite the overall reduction of children in foster care in Minnesota, in 2021 American Indian children were 16 times more likely than white children to be in and out of care, according to a June legislative report from the state Department of Human Services.

Shannon Smith, an attorney and executive director at the Minneapolis-based ICWA Law Center, said the ruling allows the organization to continue to do its daily work for children in Minnesota.

"We're just thankful," Smith said. "We're thankful that tribal sovereignty and the unique relationship between tribal nations and the federal government was recognized and appreciated."

Lead plaintiffs Chad and Jennifer Brackeen of Texas challenged the Indian Child Welfare Act in 2017 as they sought to adopt their foster son, whose birth mother is Navajo and birth father is Cherokee. In 2018, a federal judge ruled the law unconstitutional and the Brackeens filed for custody of their son's half-sister, who had also entered foster care.

A Texas judge ruled the Brackeens would share custody of the girl with her great-aunt. Both sides appealed the decision, which made its way to the high court in 2022.

Minnesota's U.S. senators welcomed the court's decision Thursday.

"The Indian Child Welfare Act continues to protect tribal identity and the best interests of Native children," U.S. Sen. Amy Klobuchar said in a statement. "I am glad that, in a 7-2 decision, the Supreme Court upheld the constitutionality of this important law, respected tribal sovereignty and affirmed Congress' ability to protect Native children."

Still, "efforts to undermine Tribal sovereignty will no doubt continue," U.S. Sen. Tina Smith said in a statement.

It was powerful to read Justice Neil Gorsuch's concurring opinion that acknowledged the painful and traumatic history of Indian boarding schools and the removal of Indian children that is ongoing, EagleWoman said.

"This should be part of the general public's understanding of ... why these kinds of challenges are so vehemently opposed by tribal nations and tribal people, to protect our children and to make sure they have a connection to their tribes and their identity," she said.

Staff reporter Hunter Woodall contributed to this report.