Indian Child Welfare Act upheld by US Supreme Court: Here's why it matters in Western North Carolina

Seven of the nine justices on the nation’s highest court voted to uphold a law centered around the adoption of Native children. The 45-year old Indian Child Welfare Act, often referred to as ICWA, prioritizes keeping native children who are removed from their biological families with extended family or other Native foster homes.

Justice Neal Gorsuch, wrote in support of ICWA in the decision in Haaland v. Brackeen.

“In adopting the Indian Child Welfare Act, Congress exercised that lawful authority to secure the right of Indian parents to raise their families as they please; the right of Indian children to grow in their culture; and the right of Indian communities to resist fading into the twilight of history," he wrote. "All of that is in keeping with the Constitution’s original design.”

Justices Clarence Thomas and Justice Samuel Alito were the only two justices to dissent in the decision.

The case considered a challenge to the law brought by a white family who adopted a native child. The family said that while they were able to adopt the child, it was racial discrimination that ICWA prioritized a native family over the Brackeens.

David Moore, a lawyer who often represents Macon, Clay, Jackson, Haywood Graham and Cherokee Counties Departments of Social Services, explained that under ICWA prioritization for a native child goes to a native family.

"Anytime ICWA is implicated, a department of Social Services...is required to give notice to that particular tribe or village, pursuant to BIA regulations," he said. "And then it is incumbent upon that tribe at that point in time to say, 'We choose to intervene in this juvenile proceeding to have a say in the placement of the child and how the court proceeding occurs.'"

ICWA plays an important role in child placement matters in Western North Carolina.

"There are plenty of instances where a tribe has been notified and nobody ever responds," he said. "The Eastern Band has a fairly sophisticated system, and so they do respond as to whether or not they're going to be involved."

ICWA was enacted in 1978 in response widescale displacement of Native American children by the federal government.

Prior to the measure, an estimated 25-30 percent of native children were removed from their families by public and private authorities and placed in non-native homes or facilities. The law sought to keep native children connected to their families and their communities.

Lilly Knoepp

Mary Crowe, a member of the Eastern Band of Cherokee who grew up on the Qualla Boundary, said her mother, Lou, helped draft the Act in response to what the removals they witnessed.

"My mother said that she's seen a lot of our children being taken away in the 50's and in the early 60's, her and my father and about three other families here on the boundary, um, opened their doors to foster kids," she said.

Sitting next to the Oconaluftee river, she told BPR both her parents were boarding school survivors.

"My dad was 10 when he was taken to the boarding schools, and he would run away and they would take him back and he would run away. And you know, it just broke my grandma's heart," she said.

Crowe said the family had one of the first foster homes on the boundary. The ICWA law is crucial to keep Cherokee culture alive and keep children in the community, she said.

Native families could take care of our own children, but officials would unfairly judge them, she said.

"Just because you are not materialistically wealthy, just because you are not financially wealthy, doesn't mean that you're poor. And doesn't mean that you can't care and love our children," she said.

Rebecca Nagle, a member of the Cherokee Nation and a journalist, was inside the court during the oral arguments in November.

The impact of the decision extends far beyond custody issues and influences the sovereignty of the about 580 federally recognized indigenous and native American tribes, Nagle said.

"There were a ton of tribal leaders and native advocates there in support of ICWA," she said in November.

"The stakes in the case are really, really high for tribes and tribal sovereignty," she said. "And I think not only for the stakes to be that high, but for native children to be the first line of defense in that broader attack on tribal sovereignty is something that I think a lot of tribal leaders and a lot of native people felt really viscerally."

In her podcast, This Land, Nagle explored the relationship between ICWA and larger issues of tribal sovereignty.

"What is scary about that argument is that there's a whole host of federal laws that treat tribes and tribal citizens differently. And so if ICWA can't do that, well then what about healthcare and health clinics that treat tribal citizens but don't treat other folks? What about laws that let tribes operate casinos where non-native casino developers can't? Is that discrimination?"

The broad reaching implications were one reason Mary Crowe was excited to hear the decision on Thursday morning.

"Well, I’m relieved. I was pleasantly surprised this morning getting the news through our Tribal Council representative TW Saunooke on Facebook,” Crowe said.

She said there are still tribal laws for children that need to be updated, and ICWA may again be challenged.

“We’re thankful that the Supreme Court made this decision but we also know that there will be more challenges," she said.

US Secretary of the Interior Deb Haaland, a member of the Pueblo of Laguna, said the decision was a welcomed one.

"For nearly two centuries, federal policies promoted the forced removal of Indian children from their families and communities through boarding schools, foster care, and adoption. Those polices were a targeted attack on the existence of Tribes, and they inflicted trauma on children, families and communities that people continue to feel today,” Haaland said in a statement.