Rule of Law

Countering the Anti-Indian Right in the Supreme Court: Defending the Indian Child Welfare Act

The Indian Child Welfare Act (ICWA) was enacted in 1978 to stop the harm caused to Indian children who were removed from their Indian nations to be adopted by non-Indians, without the consent of the concerned Indian Nations, and end the long-term damage caused to the tribes by the practice. ICWA, considered the “gold standard” of child welfare practice, initiated a significant improvement in child welfare policy in practice.

The attack on the act has long come largely from those both knowingly and unknowingly of the same imperialist mindset that thrust the destructive colonialism upon well working Indigenous communities that caused the serious harms that required the enactment of ICWA, as one aspect of rectifying the larger set of continuing injustices.

The importance of ICWA can best be understood by unfolding the story that led up to its passage and considering its impact. The telling flows from the time of precontact, well working, Native communities, through destructive colonialism, to developing self-determination. The later stages of events involve a general a shift in Western culture in which Indian self-determination and ICWA are an interacting part. The dynamics of change also include counterforces, encompassing those who oppose ICWA and self-determination. This has led to a challenge of ICWA in the U.S. Supreme Court to be heard on November 9, 2022.

Indian Nations Before Contact

At the time of European first arrival in North America, Indian nations were ancient, well working societies, having developed a deep understanding of human nature and relations, and of their relationship to their environment.1Native communities functioned inclusively and participatively, mutually supporting each and all of their citizens. Recognizing the inherent worth and uniqueness of each person, the varied contribution of each tribal member to their community was honored, as were their voices in community affairs.

While they were not perfect, their relative virtues drew many Europeans who came to what was for them a “New World” to join North American Native societies. As Hector St. John Crevecoeur said in 1782, in Letters of an American Farmer, “There must be in their [the Indians’] social bond something singularly captivating, and far superior to anything to be boasted among us; for thousands of Europeans are [have become] Indians, and we have no example of even one of those Aborigines having from choice become Europeans.”2

Moreover, from the very beginning, the direct experience of European colonists in North America and the thousands of reports about Indians avidly read in Europe had a profound impact, especially in the colonies, but also in Europe, on political, social and economic thought, institutions and ways of proceeding. 3 The idea that rights were inalienable was learned from Indians, while the entire spectrum of European and European-American political philosophies has strong Indigenous American roots. This includes that we in the United States, and in Canada, Europe and elsewhere have as much democracy as we do because of Europeans observing far more democratic and equalitarian Native examples then they previously knew. This influence has been ongoing since first contact, and has been increasing for three-quarters of a century.  It was well appreciated in the late colonial era and in the early years of the American Republic, where it was widely and correctly recognized that an American was a mixture of the European and the Indian.4 With the Indian renewal policies of Andrew Jackson, recognition of Indigenous American positive influence, went underground, but the learning has continued. Of particular relevance here is that strong evidence that Native American ways of raising children were extremely good, and generally have remained so is shown in the fact that Erick Erickson developed his groundbreaking and still central theory of human psychological development from observing the child rearing ways of the Oglala Lakota of South Dakota and the Yurok of California, in the 1930s.5 This is supported by Rupert Ross findings in his work with First Nation people in Canada in showing that traditional Native cultures, their ways of bringing up children and living together, worked very well, and that contemporary psychologists are only now learning what Indigenous people have known about human nature for thousands of years.6

The Impact of Colonialism and Movement Toward Restoration

Especially after 1830, Native peoples in the United States and Canada, who have been contributing so much to those countries and the world, suffered a horrendous physical and cultural genocide that continues to have serious negative impacts, and to some extent is ongoing.7 Indigenous Americans whose lands spanned the entire continent, have been reduced to but a few relatively small reservations, often away from their traditional lands. Moreover, Native nations have only been permitted to have reservations if they were given official government recognition. Reservation land was further reduced under the Dawes Act of 1887 that provided each Indian family an allotment of usually 140 acres within the reservation and taking the rest for settlers.8 Indian nations suffered tremendous population losses from wars, forced relocations, disease and other government and private settler action.  Some relocations involved  painful and deadly “Trails of Tears.” Diseases were at times intentionally inflicted by colonizers. Overall, the suffering and death reduced Native populations that were in the millions at the time of first European contact, to but 345,000 in 1880.9  This was a drop of at least 90 percent.

This huge population decline and accompanying suffering was furthered by the both deliberate and resulting destruction of Indigenous Americans ability to make a living, and inadequate compensation for this by the U.S. government under treaties to do that. These treaties, among other things, required the government to provide adequate education and healthcare in return for the Native nations ceding land. These treaties were often forced on tribal nations by military force, intimidation, and deceit and/or unintentional lack of the government providing adequate information to non-English speaking Indians of all that was in the treaty. Never- the-less, Indian Nations have always respected and followed the treaties, while the U.S. government continually violated them. Repeated violations of treaties and forced removals and shrinking of Indian lands were experienced by numerous Indian nations. The Unami Delaware Nation, for example, was forces to move on seven separate occasions. The repeated relocations forced the tribe from it’s original home on the Atlantic coast in 1700, to what is now Oklahoma in 1867. Nor has the federal government ever adequately provided the Native nations and their citizens what was and is required under the treaties and the federal trust responsibility stemming from them. The result of this by the 1920s, as published in the Meriam Report, in 1928,10 was that Indian people were in dire economic need to the point of starvation, with poor housing, ill health and declining population, and were extremely discontented. While that situation has improved since the 1920s, federal government spending for American Indians has continued to be considerably less than required. For example, In 1998, on all U.S. government domestic programs, federal spending per Indian was less than 65% of federal spending per American, while, Taylor and Kault, American Indians on Reservations reports that in the period of the 1990 to 2000 U.S. censuses, found that federal Indian funding levels lost ground against non-Indian domestic spending.11

Concerning health care, Tex Hall, President of the National Congress of American Indians (NCAI) stated in the third annual State of Indian Nations Address, on February 3rd, 2005, that “per capita expenditure for American Indian and Alaska Native medical services is less than one-third of the average annual expenditure for individual Medicaid assistance, and is even less than our per capita health expenditure for federal prisoners.” 12 There has been some improvement since then, especially more funding for health care, but as of 2022 there remains a huge gap to cross for Indigenous Americans to have anywhere near parity in government services, including health care, with education, housing and other essential services continuing to lag in financing and quality, even more so.

The Cultural Genocide

The cultural genocide has been even more devastating. Indian Nations were denied the right to have their own government, while their people were highly regulated and restricted in travel and other activity. Traditional leadership was undermined and traditional ceremonies were banned, while Christian missions and churches of various denominations were established on reservations in a government policy of religious and general assimilation. Worst of all, from 1819 to 1969, a few at first, and later, most Indian children were forcibly taken to distant boarding schools. There, too often harsh teachers and administrators attempted to assimilate them to White society. Students were punished if they spoke their own languages and told their traditional ways were backward and evil. In a great many instances, students suffered abuses, which often were internalized as proper behavior, while high quality traditional parenting methods were partially disrupted. The experience was so severe, that hundreds of young Indians died at the schools. The inadequacies of the education to mainstream ways, combined with racism in the larger society, prevented most Native young people from becoming part of the larger society – though there were important notable exceptions. At the same time the loss of cultural ways caused a great many Indigenous young people to find themselves alienated when they returned home.13

The boarding school experience, combined with the other aspects of colonialism, caused a great many Native Americans to feel badly about themselves and their cultures – which lost a significant portion of their cultural knowledge and wisdom – and to experience psychological problems and behaviors that were destructive to themselves and others. A major factor has been unresolved historical grief that has been passed on intergenerationally This occurs when negative feelings, attitudes and behaviors from trauma are passed on from parents and other family members to children. Such grief is difficult to deal with, as the recipients often do not know or emotionally understand the original cause, or may internalize it as their own, not realizing that it has been transmitted to them. Unless the historical grief is sufficiently resolved in a person receiving it, it is likely to be passed on to the next generation.

Up until the 1920s the tremendous harms to Indian peoples and people were accomplished under a series of evolving federal Indian policies. These began to change to some degree, slowly and unevenly, following favorable public views of the outstanding participation of American Indians in World War I. There, as generally throughout U.S. history and most notably during war time, a much higher percentage of American Indians and Alaska Natives have participated in the defense of the country than have the members of any other measured group, and of the population as a whole.15

After the 1920’s

Beginning in the 1920s, Indian policy began to improve somewhat. The federal government officially allowed Indians to vote in 1924, though some states were still preventing them from doing so well into the 1950s, and suppression of the Native vote and dilution of Native voting power has continued in some locations.16 The Indian New Deal of the Franklin Roosevelt administration brought some significant relief, within the limits of its design and bureaucratic resistance from the Bureau of Indian Affairs.17 But beginning in 1945 federal Indian policy shifted to “Termination,” ending the federal recognition of Indian nations, which occurred in some cases. In the 1950s many Native people and families were relocated from reservations to cities for jobs and support that largely never materialized.18 Then in the 1950s a major program began to adopt American and Canadian Indian children and place them with non-Native parents

From 1958 to 1967, the Child Welfare League of America (CWLA), a research and standard-setting umbrella organization for social agencies serving children, contracted with the U.S. Bureau of Indian Affairs to administer an experimental program of Native adoptions. The Indian Adoption Program (IAP) was intended “to stimulate on a nation-wide basis the adoption of homeless American Indian children by Caucasian families.”19 By 1967, 395 Native children had been adopted under the program. Then, in 1968, CWLA made it part of the broader Adoption Resource Exchange of North America (ARENA), aimed at matching hard-to-place children (including Native American juveniles) from across the United States and Canada with willing adoptive parents. By 1977, IAP and ARENA had removed almost 800 Native from their tribal homes to Caucasian families. The ARENA program, in turn, stimulated other adoption agencies to follow the same practice.20 This resulted in almost 5000 Native children being adopted out of their cultures by 1967, and thousands more such adoptions occurred afterwards. Overall, 25%-to 35% of all Native children were removed from their families, reservations and cultures, according to surveys by the Association of Indian Affairs in 1969 and 1974.21 Many Indian Nations and parents objected to these adoptions from the start. Some at the very beginning, considering the difficult conditions on their reservations at the time, reluctantly made the hard choice to allow their children to be adopted out, with the promise that their offspring would live with fine families and have good opportunities open to them. These tribes and parents soon relented when the negative effects of the program, magnified by the scale of the removals, became evident.

The adoption program created many difficulties for the adopted children and their communities. In terms of the principle that is supposed to guide adoptions, for most of the Native young people removed from the reservation, it did not work “in the interest of the child.”22 To begin with, many children were removed from their families and communities who should not have been. Too many social workers and officials making decisions were culturally limited, conceiving a proper family being, and functioning, according to the model of the mainstream White nuclear family. They did not understand that Indigenous families functioned in harmony with the idea that “it takes a village to raise a child.” Everyone in the Native community, and especially broadly conceived extended family, were involved in raising each child, and children were allowed to roam freely in the community, contributing to their education, learning from witnessing all its activities, with mentoring by virtually all its adults. This cultural misunderstanding caused many healthy and well cared for children being considered neglected and in need of removal. Many young Natives were taken without their parents’ permission. As one tribal citizen observed,23

For this whole century, right up until 1978 when we got the Indian Child Welfare Act, social workers would come in here with no understanding of how our families worked. They would see a child who’d been left with someone outside the nuclear family, and they would call that neglect. To us, that is an insane rationale. We don’t distinguish between father, uncle, mother, grandmother. We don’t think of ourselves as having extended families. We look at you guys and think you have contracted families. We couldn’t understand why they were taking us apart. My brother Gabe, going to a man and woman in Texas when we had a whole family here. I’ve seen babies carried off with no more thought than you’d give a bag of brown sugar you picked up at the market.

Because of the psychological and behavioral problems that many tribal members suffered from, to some degree, as a result of the boarding school and other colonial experiences, some children did need to be separated from their birth parents. However, instead of quite properly placing them with an extended family or other tribal member, which was the proper recourse, they were placed with white families with virtually no understanding of the child’s culture. In most instances, this caused serious problems for the child, alienating them from their culture and community, undermining their sense of self. Much too often, even if adoptive parents were loving and supportive, and honored a Native child’s heritage, encouraging them to read about it, the limited learning out of cultural context was insufficient. When, they tried returning to their community of origin, the young people did not understand how to relate and act within it, and were emotionally undermined by their alienation from it. In many instances adopted Indian children had to face racism in school and afterwards, without the support of birth peers and community members. The racism situation improved after the 1970s, but recently has worsened again. The overall impact of adopting Indian children out of their cultures has been that a great many of them have functioned badly both in the wider world and in their birth communities.

For Indigenous communities and their citizens, the huge loss of their children was traumatic, internalized as another painful act of genocide against them. Practically, it removed from the communities future quite valuable members needed for community survival, well being, and recovery from colonization.24 By the 1970s, with a large number of African American children also having been adopted out, with similar negative experiences, it began to be recognized that out of culture adoptions generally did not work very well.

Relief in the Policy of Self-Determination

Finally, in 1970, the federal policy of termination, which had been put on hold during the Kennedy admiration, was officially replaced by the launching of the policy of Indian Self-Determination.25 The policy has developed continually since then, increasingly empowering Indian Nations to exercise the sovereignty they have always had, but were prevented from exercising. Today, federally recognized tribes are recognized as being governments within U.S. federalism. As “domestic sovereigns” they have considerable autonomy in their own affairs in a federal system consisting of federal, state and tribal governments. In some respects, they are equal to states, in others superior, stemming from their having joined the United States as sovereign entities. Tribes oversee any local subdivisions they may have, such as the 110 chapters of the Navajo Nation, just as states establish, empower, regulate, and can disestablish local governments within their jurisdiction. Tribal governments, just like states are often delegated regulatory authority by the federal government, such as the power to make rules within federal guidelines and to regulate matters within and in some cases impacting their jurisdictions, such as regulating air and water quality.

In response to the considerable harm done to Indian children removed from their families and communities, and to their nations, in November 1978, as part of Indian self-determination, the United States Congress passed Public Law 95-608, The Indian Child Welfare Act of 1978.26 The act stated in part,

(3) that there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children and that the United States has a direct interest, as trustee, in protecting Indian children who are members of or are eligible for membership in an Indian tribe;

(4) that an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in non- Indian foster and adoptive homes and institutions; and

(5) that the States, exercising their recognized jurisdiction over Indian child custody proceedings through administrative and judicial bodies, have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families.

SEC. 3. The Congress hereby declares that it is the policy of this Nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs.

SEC. 4. For the purposes of this Act, except as may be specifically provided otherwise, the term—

(1) “child custody proceeding” shall mean and include—
(i) “foster care placement” which shall mean any action removing an Indian child from its parent or Indian custodian for temporary placement in a foster home or institution or the home of a guardian or conservator where the parent or Indian custodian cannot have the child returned upon demand, but where parental rights have not been terminated;

(ii) “termination of parental rights” which shall mean any action resulting in the termination of the parent-child relationship;

(iii) “preadoptive placement” which shall mean the temporary placement of an Indian child in a foster home or institution after the termination of parental rights, but prior to or in lieu of adoptive placement; and

(iv) “adoptive placement” which shall mean the permanent placement of an Indian child for adoption, including any action resulting in a final decree of adoption. Such term or terms shall not include a placement based upon an act which, if committed by an adult, would be deemed a crime or upon an award, in a divorce proceeding, of custody to one of the parents.

(2) “extended family member” shall be as defined by the law or custom of the Indian child’s tribe or, in the absence of such law or custom, shall be a person who has reached the age of eighteen and who is the Indian child’s grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, or stepparent;

The standards put forth in the act set guidelines for cases involving possible removal of Native children from their families and communities for state and other agencies and courts. These standards corrected the misnomer about what a Native family is and gave preference to leaving Indigenous children, first, in their extended family, second in the community, and lastly with other Indians whose culture was similar to that of the child’s community. But the act recognized that where there is no satisfactory Native placement, an outside placement is proper (Section 105, a), and for temporary removal of a child in an emergency situation where a child faces imminent serious harm with their parent or guardian (Section 112).

Recognizing that Indian tribes are governments within the U.S. system of federalism, ICWA established,

SEC. 101. (a) An Indian tribe shall have jurisdiction exclusive as to any State over any child custody proceeding involving an Indian child who resides or is domiciled within the reservation of such tribe, except where such jurisdiction is otherwise vested in the State by existing Federal law. Where an Indian child is a ward of a tribal court, the Indian tribe shall retain exclusive jurisdiction, notwithstanding the residence or domicile of the child.

However, exceptions to tribal jurisdiction are permitted “for good cause” in Section 101 (b). Section 109 allows for Indian tribes to make agreements on the handling of Indian child removals and adoptions, again making the act flexible to deal with the best interest of the child, and also of the Indian nation.

Overall, the act sets good, flexible, standards and procedures for ensuring the best interest of the child, so far as possible, and secondarily for maintaining the integrity of the concerned Indian nation. Indeed, “Research shows that children in kinship care [keeping children within the extended family, tribe, or tribally approved foster home or culturally appropriate institution] have profound and enduring benefits to mental health, economic, and educational well-being,” while, “Anti-ICWA policymakers and groups disregard these facts in their attempts to upend the Indian Child Welfare Act.”27 The research makes it clear, that not only are children usually better off psychologically if they are kept in kinship care, but along with that they function better in all aspects of their lives, including achieving more educationally and professionally, and as result faring better economically.

The ICWA standards were such an improvement over much of prior child welfare practice that Congress later imposed similar standards on state foster care systems. This has included requiring “reasonable efforts… to preserve and reunify families (42 U.S.C. §671(a)(15)(B)) and imposing requirements for notice (42 U.S.C. §675(5)(G)). While no legal process can work perfectly in practice, for the most part, ICWA has vastly improved the wellbeing of both affected Native children and their communities. In so doing, coming at a time when cross cultural adoptions had generally been found not to work very well for most children and communities, ICWA improved the work of caring for children generally. The act set forth that the proper definition of “family” varies culturally, and that child removals and placements need to consider both cultural factors and the impact of any such action on the child’s community.

Attacks on ICWA

The Issue of Race and the Plenary Power of Congress in Indian Affairs

The Indian Child Welfare Act has long been attacked by those innocently limited in their understanding by the colonialist thinking that necessitated ICWA in the first place, and by many who are racist more broadly or anti-Indian in particular. Those attacks have now reached the point of a Supreme Court case involving challenges to the constitutionality of ICWA as a whole, and the constitutionality or legality of sections of the act.28 The primary alleged objection to ICWA is that it is it violates “equal protection of the law” as set forth in the 14th Amendment as favoring one racial group. In general terms, it should be noted that those who favored inequality, especially regarding “race”, but having lost the racist elitist argument, now often argue that “equality” means that everyone must now be treated in the same way, in attempt to protect their elite advantage by preventing people who have been made unequal from regaining equality by restorative or affirmative action.

Concerning ICWA, and other legislation and government action directly concerning and beneficial to Indians, the focus of the law is not in any sense based on race. Rather it targets a specific group on the basis of citizenship, citizenship in an Indian nation, often referred to as “tribe.” This becomes obvious when one sees that ICWA only applies to children who are, or are eligible to be, citizens of a federally recognized Indian or Alaska Native nation. In terms of race, a great many who are by blood or heritage, Native Americans, are not tribal members. While there are a great many people who are by blood African American, White, and possibly Asian, who are tribal citizens. This has occurred by tribal adoption, in most instances generations in the past.29  In U.S.  citizenship terms this is “naturalization,” and consistent with U.S. law, tribal citizenship is inherited from parents who are tribal citizens. This is similar to U.S. citizenship being conferred on the offspring of U.S. citizens, even if they are born in a foreign country.

Some argue that ICWA, and by inference most, if not virtually all, federal Indian legislation dealing with welfare issues is unconstitutional because, they argue, that ICWA is based on the federal Commerce Power in article I of the U.S. Constitution, and that Indian child adoption has nothing to do with commerce. This argument is fallacious, first for misquoting the act and secondly for misconstruing the meaning of “commerce” as used by the framers in writing the Constitution, and by Congress in its early sessions and since then with regard to Indian affairs. ICWA. Section 2 of the act plainly says,

SEC. 2. Recognizing the special relationship between the United States and the Indian tribes and their members and the Federal responsibility to Indian people, the Congress finds—

(1) that clause 3, section 8, article I of the United States Constitution provides that “The Congress shall have Power * * * To regulate Commerce * * * with Indian tribes” and, through this and other constitutional authority, Congress has plenary power over Indian affairs;

(2) that Congress, through statutes, treaties, and the general course of dealing with Indian tribes, has assumed the responsibility for the protection and preservation of Indian tribes and their resources; ‘

(3) that there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children and that the United States has a direct interest, as trustee, in protecting Indian children who are members of or are eligible for membership in an Indian tribe;

The plenary power of the United States to regulate relations with, and affairs regarding Indian Nations has been continually recognized by the U.S. Supreme Court since 1831, when the court stated in Cherokee Nation v. Georgia (30 US 1; 5 Pet 1; 8 L. Ed. 25) that Indian tribes were “domestic dependent nation[s]”, and in 1832, in Worcester v. Georgia, (31 U.S. 515; 6 Pet. 515; 8 L. Ed. 483), the U.S. Supreme Court found that the Cherokee Nation was sovereign, and that Georgia had no rights to enforce state laws in its territory, as the sole power to relate to tribes was held by the Federal Government, primarily with Congress. The plenary power of Congress over Indian Nations stems not only from the commerce power, but also from the power that the Constitution gives to Congress to make regulations governing the territory belonging to the United States (Art. IV, Sec. 3, Cl. 2), and the president’s constitutional power to make treaties (Art. II, Sec. 2, Cl. 2), under which Congress may pass legislation. The plenary power of Congress has continually been upheld, as exemplified by the Supreme Court’s decision in Lone Wolf v. Hitchcock, in 1903 (187 U.S. 553, 23 S. Ct. 216, 47 L. Ed. 299). The change that has occurred with the ongoing development of the policy of self-determination, is that Indian nations, partners in U.S. federalism, are now in fact domestic sovereigns.

The Spending Power and ICWA

The Indian Child Welfare Act also includes provisions to establish and fund programs to make ICWA function well in practice, improve physical and behavioral conditions in Indian homes to make removals of children unnecessary or only temporary, and otherwise assure that “the permanent removal of an Indian child from the custody of her/his parent or Indian custodian shall be a last resort,” as the removal of children from their parents almost always has negative impacts on the child, and should only be undertaken when leaving a child with its parents is more harmful to the child. These programs are undertaken under the Article I, Section 8 of the constitution spending power of congress to “provide for the common Defense and general Welfare of the United States,” and are consistent with long legally well established use of that power. The act provides,

SEC. 201. (a) The Secretary is authorized to make grants to Indian tribes and organizations in the establishment and operation of Indian child and family service programs on or near reservations and in the preparation and implementation of child welfare codes. The objective of every Indian child and family service program shall be to prevent the breakup of Indian families and, in particular, to insure that the permanent removal of an Indian child from the custody of his parent or Indian custodian shall be a last resort. Such child and family service programs may include, but are not limited to—

(1) a system for licensing or otherwise regulating Indian foster and adoptive homes;

(2) the operation and maintenance of facilities for the counseling and treatment of Indian families and for the temporary custody of Indian children;

(3) family assistance, including homemaker and home counselors, day care, afterschool care, and employment, recreational activities, and respite care;

(4) home improvement programs;

(5) the employment of professional and other trained personnel to assist the tribal court in the disposition of domestic relations and child welfare matters;

(6) education and training of Indians, including tribal court judges and staff, in skills relating to child and family assistance and service programs;

(7) a subsidy program under which Indian adoptive children may be provided support comparable to that for which they would be eligible as foster children, taking into account the appropriate State standards of support for maintenance and medical needs; and

(8) guidance, legal representation, and advice to Indian families involved in tribal, State, or Federal child custody proceedings.

The spending power has two aspects that have regularly been upheld by the Supreme Court. First, Congress has the power to appropriate money to carry out its constitutional powers, and those of the other branches of the federal government. Without this it could not carry them out. Even those who have the narrowest of constitutional interpretations would agree that this is necessary and proper, as must follow, in any case, from the final clause of Article I, Section 8,  that Congress has the power, “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” Since the U.S. government has sole jurisdiction over Indian tribes, any moneys provided to tribes by the U.S. government for carrying out ICWA or any other tribal purpose, not otherwise prohibited by the constitution or federal law, are clearly legitimate. This does include some of the items in ICWA section 201.

The second aspect of the spending power is that Congress may give incentives to the states to do things by offering them money for those purposes which usually have requirements that the states must adhere to if they decide to accept the money. The Supreme court has consistently upheld such use of the spending power, as long as it does not otherwise violate constitutional limitations.30 In the only case in which the court did overturn a use of the spending power, National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012), the majority ruled that Congress exceeded its Spending Clause authority by coercing states into a transformative change in their Medicaid programs by threatening to revoke all of their considerable Medicaid funding if they did not participate in the Medicaid expansion, which would have an excessive impact on a state’s budget. The court ruled that Congress may withhold from states refusing to comply with the Affordable Care Act (ACA)’s Medicaid expansion provision only the additional funding for Medicaid provided under the ACA. All of the above provisions of section 201 providing money to the states involve new spending, and thus are not coercive of the states under the court’s ruling in NFIB v. Sebelius. Moreover, changes over time in regulations involving receiving those monies would not be considered coercive if they did not provide a major burden upon the states. As the Chief Justice stated in Sebelius, requirements in federal grants only become coercive, “When, for example, such conditions take the form of threats to terminate other significant independent grants, the conditions are properly viewed as a means of pressuring the States to accept policy changes.”

While it is not a legal or constitutional issue with ICWA, it is important to note that a strong case can be made that the passage and continued upholding of ICWA is “in the General Welfare of the United States.” As is shown below, the benefits to Native people that followed from the passage of ICWA have allowed them to contribute significantly to the communities around them, and the country as a whole, in many fields. Further, the passage of ICWA has led to improvements in welfare policies and the social work profession.

Constitutional Issues Relating to “Commerce” in Relations with Indian Tribes

The term “Commerce,” as used by the framers of the Constitution and by Congress with regard to relations with Native nations had broad meaning, extending well beyond narrow economic interactions. It meant “intercourse,” the entire scope of relations between the United States and Indian tribes. The history of the plenary power of Congress to have the sole authority to regulate Indian affairs is authoritatively, and the broad meaning of “commerce,” is set forth authoritatively by Professor Gregory Ablavsky in his “Summary of the Argument” in his brief in Brackeen v. Haaland.31

The new Constitution centralized all these powers in the new federal government. The Indian Commerce Clause was only one among these interrelated powers, but, as James Madison observed, it explicitly shed the qualifying language preserving state authority from the Articles of Confederation.

Moreover, it relied on a term, “commerce,” that Plaintiffs themselves acknowledge was universally defined as “intercourse,” a term of art of the time to describe relations between Natives and U.S. citizens.

Ratification and post-ratification history confirms this conclusion. One of the few commentaries on Indian affairs during ratification acknowledged that ratification would “totally surrender” authority from states to Congress. Similarly, federal and state officials alike concluded that, under the new Constitution, the federal government had preeminent authority to govern intercourse between the United States and Indian tribes.

From the beginning, this authority encompassed federal regulation of the status of Indian children. This centrality reflects both the widespread frontier commerce in captive Indian children and the significance of education to the federal project to “civilize” Indians. Similarly, after ratification, Congress and federal officials, including President Washington, invoked federal power over Indian affairs to mandate that state courts and officials comply with federal aims and policies.

The Plaintiffs here seek to challenge this text, precedent, and practice by advancing a revisionist argument that asserts a highly circumscribed vision of federal authority over Indian affairs. Their claim that this approach reflects original constitutional understandings, however, rests not on concrete Founding-era evidence but on a handful of contested law review articles that rely on inaccurate evidence. Their claims are nonetheless not new: they echo purposive Removal-era efforts by state advocates to challenge federal authority. Yet such arguments have met two centuries of repeated failure in this Court beginning in the 1830s, and warrant continued rejection today.

Related to the broad constitutional meaning of “commerce” in Indian affairs is the broad meaning of “resource” in ICWA, section 2 (3), “that there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children.” Here, resource clearly references all the ways in which a tribe’s children are vital to its future. Without them, the nation has no physical, social, or cultural existence, while their loss is psychologically debilitating, as the history of Indian child removal indicates.

Even if one were to narrowly construe the commerce power to direct economic affairs, the removal of Indian children from their nations in large numbers would be devastating That this is in fact the case, can easily be seen today with Indian nations having a very substantial impact on the economies of the states in which they are located, with a number of instances in which tribes are the primary employers in the counties adjacent to their reservations.32 The quite significant and growing role of Indian nations in local, state and national economy in the United States would not be possible to have been achieved at anywhere near its current and increasing level if tribal populations had been greatly reduced by continuing large scale removal of children. Further, even if one were to define the federal commerce and other powers exceedingly narrowly, on the basis of the Tenth Amendment of the Constitution, to leave more room for such powers to be exercised at lower levels of American federalism, the authority to regulate the adoption of children who were, or were eligible to be, Indian nation citizens, would rest not with state governments, but with tribal governments, who are recognized as having that authority by ICWA in Section 101, a.

Complaints of Bad Outcomes in Applying ICWA

A number of Native Americans have expressed dissatisfaction with ICWA on the basis of their bad experience of being relocated within their communities, rather than adopted out. That, however, is a problem of the individual decisions that were made in their cases, and not with ICWA, which is flexible, and allows for out of extended family and community placement when there is a good reason for it. Unfortunately, in legal, and human affairs generally, bad decisions, unforeseeable negative results, and sometimes lack of even moderately good options occur. That of itself is not a reason to abandon a law, bureaucratic or private process. What needs to be done to minimize such cases, is to have sufficient review leading to learning from bad outcomes, resulting in providing whatever is necessary to greatly minimize negative consequences.

Requirements for State Courts

There have also been some objections to parts of ICWA claiming that setting requirements for state courts in proceedings involving Native children for the foster care placement or termination of parental rights violates the Tenth Amendment’s anti-commandeering doctrine in applying federal standards to state created claims. These requirements involved: setting forth that “the Indian custodian of the child and the Indian child’s tribe shall have a right to intervene at any point in the proceeding (Sec. 101, c);” the need of the court to notify the parent and tribe of an Indian child in an involuntary proceeding (Sec. 102, a); Insure the right of an indigent parent or Indian custodian to be represented by counsel, and authorize the court at its discretion to appoint counsel for the child when it is in the best interest of the child to be so represented (Sec. 102, b); insuring the right of all parties to a proceeding to have access to all relevant reports and other documents (Section 102, c); that the court not permit removal of a child unless “active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful” (Sec. 102 d), that  decision to remove is “supported by clear and convincing evidence, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child” (se. 102 e a d f); and that adequate written records of the proceedings be made and maintained (Sec. 103, a And Sec. 105, e). The suggestion that these provisions violate the Tenth Amendment is fallacious, because it has been long accepted that the anti-commandeering doctrine only prevents Congress from compelling state legislative and executive officers “to enact and enforce a federal regulatory program.”33 Concerning judicial matters, however, the Supremacy Clause’s command in Article VI,  Clause 2 that federal law “shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby,” authorizes Congress to provide rules governing state courts in proceedings involving individual interests.34  Thus the sections of ICWA in question are quite proper, insuring that Indian child welfare proceedings are fair and proper, with the rights of the parties upheld, consistent with the requirements of the Fifth and Sixth Amendments to the Constitution, and with American principles of due process of law.

That what is asked of state courts in ICWA is consistent with the Constitution as shown by numerous court decisions and continual practice since the early days of U.S. government under the Constitution is well documented in the brief of the Constitutional Accountability Center in Brackeen v Holland, which concludes,

           Since the Founding era, Congress has imposed obligations on state courts and judges, both by creating laws that are “to be of force and effect in all courts, state or national,” Ward, 51 Mass. [583 (1846)] at 592, and by requiring state courts and other state officials to engage in modest recordkeeping and information sharing related to federal laws. In ICWA, in order to remedy state courts’ persistent “fail[ure] to recognize the essential tribal relations of Indian people,” 25 U.S.C. § 1901(5), Congress created a series of substantive and procedural requirements that protect Indian families, id. § 1901(4). These requirements are entirely consistent with the kinds of obligations that Congress has imposed on state actors since the Founding, and this Court should hold that they are constitutional.35

The Early Involvement of the States in Education and Child Welfare

An argument has been posed against ICWA claiming that ICWA is entirely an attempt by the Federal Government to fix problems resulting from its exclusive program of Indian Boarding Schools, and that, therefore, the federal government must correct the problem itself without requiring action by the states. The historical record clearly shows that this is not the case.36

The states were complicit in both the boarding schools and the Indian adoption and education programs that followed the beginning of the winding down of the boarding school program in the 1920s. The states were involved in the boarding school program by selling land to the federal government for some of the schools, while local and state police collaborated with the federal government by catching and returning runaway Indian students to many of the schools.37 The intermeshing of state, local and federal government action in the boarding schools is exemplified by the Carlisle Indian School. It was built, initially, on former army land, but was expanded with the assistance of the Pennsylvania state legislature passing an act allowing the federal government to purchase more land for the school. Officials at the school regularly called on police from several jurisdictions to capture and return escaping Indian students. In Oregon, where the BIA’s Chemawa Indian School was established on land purchased for that purpose from the sate legislature, “State officials, such as the President of the University of Oregon, advocated for and praised the school’s ‘outing’ system, which sent the school’s students into the homes of families throughout the state and provided cheap labor that bolstered local economies.”38

More important, is the state direct involvement in Indian child welfare, beginning in the 1920’s. Following the Meriam Report finding, in 1928, that the boarding schools were “grossly inadequate,” the federal government began to change policy toward educating Native children in state run public schools and on-reservation day schools.39 That was part of a shift in the broader federal view to asserting that welfare programs intended to assist Native families were best carried out at the state and local level. By that time, virtually all the states had made school attendance mandatory, and instituted statewide public school systems. By 1940 public education had become the largest portion of state budgets. The states were reluctant to educate or take welfare responsibility for Native children, as Indians and their reservation lands were not taxed by the states, who also complained they had no jurisdiction over them. This led states to request federal funding to support Indian education and child welfare efforts. In 1935, Congress passed the Social Security Act (SSA),40 which included greatly increasing federal funding to states to help support their child welfare programs, most particularly for establishing and supporting state child foster care programs.

However, most states continued to refuse to provide benefits to Native families and children, risking loss of federal SSA funds. This occurred despite lawsuits amid complaints of resulting Native deaths and suffering.41Eventually, the federal government began offering full federal funding for specific state welfare programs that served Indian people.

Meanwhile, Congress had passed the Johnson-O’Malley Act, in 1934, authorizing the federal government to contract with states for provision of education and other welfare funds for Native people who were “so intermixed with that of the general health of the community that it is difficult to separate the two.”42  Having initially undertaking such contracting only for Indian education, in 1949 the BIA began issuing Johnson-O’Malley contracts with states for welfare programs. By 1955, states began asking the BIA for larger subsidies for the care of Native children. The BIA complied engaging in a large number of such contracts with states over the next twenty years. These federal-state agreements for the first time encompassed such activities as foster care to take the place of boarding schools.

These contracts included standards for removing Indian Children which were essentially the same as those later required by ICWA. An example, is Minnesota’s request of Johnson-OMalley funding for an Indian foster care program as part of a general plan to close the Pipestone Indian School.43 In making the request, Minnesota agreed “that funds invested in the Indian foster care program will be used in the best interests of Indian children.” The agreed requirements, generally included in state-federal Indian child welfare contracts, included that removal would occur only with parental consent or a full hearing, including casework support; licensing of foster home placements; a preference for a home placement setting over an institutional setting, unless a showing is made otherwise; and continuing casework support for children and parents following removal. This foreshadowed what was later written in ICWA and embraced a concern “that the potential and actual values in Indian home life shall at all times be particularly recognized, and efforts shall be directed to the improvement of the family and community life, rather than separation of children from their relatives, except where the child’s welfare is threatened by failure to remove him.”44 Also required in the contracts was that the states keep records of child welfare proceedings with monthly or annual reports to the BIA, along with the states allowing BIA personnel to review all “records relating to Indian children covered by this contract” and to “have access to [state welfare] facilities at any time in order to observe and evaluate the services provided under this contract.”45

This expansion of state welfare programs with federal-state contracts to include Indian children led directly to the huge removal of Indigenous American children that necessitated the passing of ICWA to end the wrongs inflicted by the mass removals. Moreover, the historical record shows that the states failed to meet the existing standards, very often removing children simply on the basis that they lived in poverty. The evidence indicates that this state action was driven by state government financial concerns. With the closing of the boarding schools, it was les expensive to place children in middle class foster homes than to provide direct services to Native families.46

Finally, a number of years before the passage of ICWA the states were required by Congress to meet virtually the same standards and recruitments in ICWA in dealing with children of foreign nationals. The Multilateral Vienna Convention on Consular Relations and Optional Protocol on Disputes, better known as the Vienna Convention, was signed by the United States on April 24, 1963.47 Both the convention and the treaty require in child welfare hearings notification of the child’s potential other nation and require state officials to keep records of that notice, as well as both mandating that state officials collaborate with the representative of the child’s nation, who supplies integral linguistic and cultural translation for the state court proceedings, and that a guardian be appointed. The Vienna Convention and ICWA both work in the best interest of children of another sovereign in understanding that the continuing existence and wellbeing of the sovereign nation relies on its children, and that cultural and linguistic differences cause difficulties in legal proceedings involving them.

The key point that emerges in seeing both ICWA and the child welfare portions of the Vienna Convention together is that both involve the treatment of children of another sovereign. In the case of the Vienna convention, the topic is children of foreign sovereigns. In the case of ICWA, the subject is children of a domestic sovereign. That Indian nations are governments within the U.S. federal system with sovereignty in some ways similar to that of states and in some ways greater is something the objectors to ICWA fail to understand. Most important, the objectors, especially representing states, are ignorant of or overlook that what ICWA requires has long been agreed to by the states – often of their own initiative – and that they do not seem to have had any complaint about these child welfare requirements, except in the current instance of Indigenous Americans. That tends to give the impression that if there is any racial bias, however unwitting, in the arguments concerning ICWA, it is on the part of those attacking the Indian Child Welfare Act. The act clearly is consistent with long firmly established United States constitutional law and practice.

The Overall Positive Success and Importance of ICWA

Everything considered, The Indian Child Welfare Act of 1978 has been extremely important for a great many Indian Children, and for Native nations, with significant benefits for neighboring communities and the United States as a whole. While there have been cases where ICWA was not properly applied, or child placement under it did not turn out well for unforeseeable reasons, and state child welfare personnel and courts do not always act in accordance with it,48 in most instances the best interest of Indian children has been far better served then previously. The act’s setting good standards and procedures for action for the wellbeing of Indian Children, have brought about a broad general improvement in child welfare proceedings in the U.S. at large. No longer do already oppressed Native communities suffer huge losses of their children, denying them needed important future members, while adding to the debilitating traumas of physical and cultural genocide. While more needs to be done, including the provision of more funding for services to make temporary and permanent removal of Native children less necessary, ICWA, together with other federal legislation and policies of self-determination have greatly improved the quality of life of Indian communities and their citizens. This in turn, has allowed Native nations and their citizens to contribute increasingly to the economies and quality of life of neighboring communities  and of the country as a whole; to contribute in many fields: including in many aspects of American culture; to scientific knowledge and advancement; while empowering Indigenous Americans to take increasing leadership in the discussion of public issues.49