Members of Mashpee Wampanoag Tribe defend Indian Child Welfare Act


A young Native child sits in between two foster parents. Illustration by Rachel Choi.

By Chloe Els, Staff Writer

After spending the last four years rising through the federal court system, Haaland v. Brackeen reached the Supreme Court on Nov. 9, challenging the constitutionality of the Indian Child Welfare Act which prioritizes the placement of Native foster children with Native caretakers.

In 2017, Chad and Jennifer Brackeen wanted to adopt a 2-year-old Navajo child. At the same time, a Navajo family became available to adopt the child and was favored over the Brackeens because of the ICWA. The Brackeens filed a lawsuit in a Texas district court and won, finalizing their adoption of the Navajo child. 

Despite winning their case, the Brackeens and several other plaintiffs turned to the Fifth District Court of Appeals to strike down ICWA because they believe it is unconstitutional. The court of appeals issued a divided ruling that both admitted the plaintiffs—including seven individuals like the Brackeens and the state of Texas—had standing but also did not allow for a summary judgment. The plaintiffs then took their case to the Supreme Court.

Texas and the individual plaintiffs argue Native Americans are a racial group, and because of this, choosing a Native child’s caretaker based on their status as a member of the Native community is racial discrimination and unconstitutional under the equal protection clause in the Fifth Amendment. Furthermore, they claim the anticommandeering doctrine of the Tenth Amendment, substantive due process, and the nondelegation doctrine—all of which limit congressional powers—also render ICWA unconstitutional.

In response, the defendants—including the U.S. Department of the Interior, the Cherokee Nation, the Oneida Nation, the Quinault Indian Nation, the Morongo Band of Mission Indians, and the Navajo Nation—define Native Americans as a political group rather than a race. Based on this definition, the defense argues ICWA is not racially discriminative and does not violate the Constitution.

Maria Turner—the ICWA Manager for the Mashpee Wampanoag Tribe—said she supports the defense’s case and believes ICWA is not racially discriminative. However, she also believes neither side is fully right or wrong in defining the Native community.

“Political or racial … those are their words,” Turner said. “Race is something that came about when the Europeans came. They decided to make the split between us and them.”

Native communities can be political, she continued, but they would not have necessarily used the word “political” to describe themselves.

“We’re a tribe,” she said. “We just want to make sure our children and elders are taken care of.”

Beth Wright—a staff attorney for the Native American Rights Fund—emphasized the importance of children to tribal communities in the tribal amicus curiae brief she helped assemble for Haaland v. Brackeen, which represents 497 federally-recognized tribes.

“Children are sacred,” Wright said in an interview with The Beacon. “Children are the future of the tribe, and their job is to ensure tribal sovereignty is strengthened in the next generations.”

Yvonne Avant, the Mashpee Wampanoag Council liaison, explained without ICWA, the biggest challenge would be keeping track of Native children. 

“[Massachusetts Department of Children and Families] wouldn’t be required to let the tribe know when they remove a child,” Avant said. 

ICWA allows the tribe to be “treated like a third parent,” which Avant said means the tribe is notified and involved in the whole process of finding a home for one of its children.

The individual plaintiffs and Texas claim ICWA uses ancestry as a “proxy for race” because the ICWA allows tribes to claim children based on their biological heritage, and this tribal membership determines whether a child is Native and should be placed in a culturally Native home.

Furthermore, the plaintiffs allege ICWA oversteps Congressional authority. Article I of the Constitution contains the Indian Commerce Clause which allows Congress to make all laws regarding Native American trade. However, the individual plaintiffs and Texas claim “ICWA does not regulate commerce at all because children are not chattels or objects of commerce.”

According to the defendant tribal nations, cases like Morton v. Mancari and Peyote Way Church of God Inc. v. Thornburgh established Native Americans as a political group.

“ICWA’s definition of Indian child is triggered solely by political affiliation; enrolled membership (or eligibility for it) in a sovereign nation,” the defendant tribal nations wrote in their brief. “Indeed ‘Indian child’ includes children without Indian blood, such as descendants of freedmen. And many children who are racially Indian do not qualify as Indian children under ICWA.”

The defendant tribal nations also allege the Constitution allows Congress absolute powers regarding Native American tribes, based on the precedent established in the United States v. Lara Supreme Court case. 

“Congress has the unique ability to pass legislation that benefits tribes in a way Congress may not be able to with other groups,” an attorney involved with the ICWA case said in an interview with The Beacon.

Sarah Kastelic—the executive director of ICWA—said the Constitution recognizes tribes as sovereign, much like it would a state. 

U.S. law has always recognized Tribal Nations as having the inherent powers of self-government, including the power to decide what is best for their youngest citizens,” Kastelic said in a statement released to The Beacon.

A 1978 congressional report found approximately 25% to 35% of Native children were being removed from their homes, and 85% of the removed children were placed in homes with no connection to their family or tribal community.

Beginning in the 1870s, Native American children were forced to leave their families and attend boarding schools designed to teach them how to assimilate to Western culture. At these boarding schools, Native children were given haircuts and new names and were forbidden from speaking their native languages.

The boarding schools largely disappeared by the mid-1900s and were replaced with discriminatory government practices that led to a number of Native mothers being declared unfit and their children being placed in white homes. As a result, family ties were severed and Native communities weakened until ICWA was created as a solution.

Avant said it has always been customary for Native communities to prioritize having a child’s next-of-kin care for them if their parents cannot and is disturbed at the idea of future foster children being sent away to live with families who are not connected to their tribe.

“Why are they trying to strip us again of a culture and custom that we had?” Avant said.