Connect with us

Hi, what are you looking for?

Editor's Pick

Court’s ICWA Ruling Doesn’t Reach Individual Rights Claims

Walter Olson

The Supreme Court today in Haaland v. Brackeen, a challenge to the Indian Child Welfare Act of 1978, did not reach the underlying Constitutional issues of equal protection and individual rights for children and families, and these remain to be resolved another day. Instead, the Court addressed important structural issues concerning the relationship between federal, state, and tribal governments. It interpreted the Constitution as giving robust powers to Congress to regulate Indian matters, while sharply limiting the underlying authority of state governments. It also found the doctrine of “commandeering” inapplicable to the facts here and denied some claims of standing. The 7–2 decision was written by Justice Amy Coney Barrett, with Justice Clarence Thomas writing a dissent that was joined by Justice Sam Alito.

Future cases may frame more sharply than this one did such questions as whether children and parents who have never lived in tribal relations or in Indian country may nonetheless be subjected to tribal sovereignty and special custody presumptions because of blood descent alone. Cato raised some of these issues in its brief.

Everyone interested in these issues should read Justice Neil Gorsuch’s eloquent concurrence, joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, in which he lays out the grim history of government intervention in Indian family life to which ICWA was a reaction. It is a history in which agents of the state intervened to take children away from the only families they had ever known, very much against those families’ will, to place them with complete strangers in pursuit of vague remedial goals. Some will see in this history above all an assault on Indian tribes as collective entities. Others — I am one — will be moved to horror above all by the flagrant violations of individual and family rights. We should take care not to repeat such violations in pursuit of new remedial objectives.

You May Also Like

Editor's Pick

Walter Olson You sometimes hear people talk as if even plaintiffs with meritorious cases can’t win libel suits in American courts because of the...

Editor's Pick

Marc Joffe Federal, state, and local governments are being called upon to support struggling transit agencies to meet climate change goals. But spending money...

Editor's Pick

David Boaz A new study by the Indian newspaper The Print, based on data from The Economist Intelligence Unit’s Democracy Index 2022, finds that...

Editor's Pick

Jeffrey A. Singer Earlier this week, the Food and Drug Administration issued a draft of proposed guidelines for clinical researchers conducting trials on psychedelic drugs....