Editor’s Note: This article was originally published in Keep It Rural, an email newsletter from the Daily Yonder. Like what you see? Join the mailing list for more rural news, thoughts, and analysis in your inbox each week.
ICWA and Tribal Sovereignty Are Rural Issues
After months of deliberation, the Supreme Court upheld the Indian Child Welfare Act (ICWA) in a 7-2 vote last Thursday. Native people across the country celebrated the decision as a victory for tribal sovereignty.
The law, enacted in 1978, addressed a crisis faced by more than one-third of all Native children who were removed, often forcibly, from their homes and placed with non-Native families through the foster care system, according to a congressional investigation conducted in the mid-1900s.
ICWA recognized the “alarmingly high percentage of Indian families…broken up by the removal, often unwarranted, of their children from them…” and that the United States has often “failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families.”
To protect these cultural and social standards for Native children in foster care, three placement preferences were established under ICWA: placement with a relative, placement with a member of their same tribe, or placement with members of another tribe.
But these protections were under scrutiny until last week because of challenges from the state of Texas and three white couples seeking to adopt Native children. The four cases were consolidated and brought to the Supreme Court in November of 2022, where the plaintiffs argued ICWA illegally discriminated against non-Native families on the basis of race.
Last week’s decision rejected this argument, with Justice Neil Gorsuch citing the Fourteenth Amendment that confirms Native status as a “political rather than racial” classification. This distinction confirms tribal sovereignty, which gives American Indians and Alaskan Natives the right to self-governance. If Native status had been found to be a racial, not political, classification, tribal sovereignty at large would have been placed in limbo.
“Issues like reservation status, land use, water rights, gaming — just any issue that you could ever think about that is a legal issue involving tribes is questionable if a court finds that ICWA is unconstitutional because it’s race-based,” said Chrissi Ross Nimmo, deputy attorney general of the Cherokee Nation, in a 2022 interview with The Nation.
Put simply, this decision is a big deal not only for Native children but for tribes and their status as political entities within the United States as well.
This is also big news for rural America, where 54% of all American Indians and Alaskan Natives live, according to 2017 research from the First Nations Development Institute. Native and non-Native rural communities are interwoven for all kinds of economic, environmental, and social reasons, and the loss of tribal sovereignty would be felt in ways a few words in a newsletter can hardly begin to describe.
Fortunately for me, I don’t need to worry about describing it. The Supreme Court’s decision upholds tribal sovereignty, and Native-led groups across the country are determined to keep it that way.
In a press release, members of the Protect ICWA Campaign praised the decision and affirmed that Native groups and allies will continue to show up to protect tribal sovereignty: “We hope this decision will lay to rest the political attacks, but let this case show that Indian Country and its many bipartisan allies are united in defense of Native children and of tribal sovereignty.”
Rural Reading List
Montana’s First-Ever Psychiatry Residency Program to Serve Rural Communities
Graduates from the state’s new program want to ease barriers to access to mental health care in rural parts of the United States.
Does America Still Love Comeback Stories? A Conversation with Beth Macy About What Recovery Requires
Author Beth Macy has chronicled the origins of the opioid crisis and how the greed and corporate malfeasance of Purdue Pharma wrecked communities and destroyed thousands of American lives. The Daily Yonder spoke with her about the landscape of recovery in rural America.
More reading about ICWA: ProPublica recently covered how the protections guaranteed by the law are still challenged by some state authorities.
One More Thing: One Last Reading Assignment
Yesterday was Juneteenth, a federal holiday commemorating the emancipation of enslaved African Americans. For our part, we published an excellent article by my colleague Anya Slepyan, about a national movement led by the Equal Justice Initiative to recognize America’s brutal history of racial terror. With maps created by our in-house data superstar Sarah Melotte, I strongly suggest giving this piece a read.
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