The Supreme Court does right by tribes, kids and the law

Opinion editor's note: Editorials represent the opinions of the Star Tribune Editorial Board, which operates independently from the newsroom.

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The U.S. Supreme Court decision upholding the Indian Child Welfare Act stands as an affirmation of this country's special obligations to protect the integrity of Native American tribes and cultures and to safeguard each tribe's most precious resource: its children.

Minnesota tribes were jubilant at the recent news that the court voted 7-2 to preserve the federal law, even after white foster families — including a Minnesota couple — challenged the act in Haaland v. Brackeen, arguing that the act was race-based and gave the federal government too much power over Indian adoptions and placements that more properly should reside with the states.

Justice Amy Coney Barrett, writing the majority opinion for the court, noted decisively that congressional power to legislate where tribes are concerned was both "well established and broad," while also affirming that tribal rights and protections are rooted not in a race-based classification but a political one, as sovereigns.

Melanie Benjamin, chief executive of the Mille Lacs Band of Ojibwe, told an editorial writer that deciding otherwise "could have upended almost 200 years of federal Indian law. If being the citizen of an Indian tribe became just a racial classification, there could be chaos across Indian Country. It would change everything. Our status as a tribe is based on political standing, not race. Tribes are political sovereign entities."

Benjamin said Congress passed ICWA in 1978 primarily because Indian children continued to be taken regularly from their families and tribes and placed with non-Indian adoptive or foster families. "Even in the 1970s the rate was still about 25 to 30 percent placement with non-Indians," she said. "It has always been the position of this country to have us become part of the melting pot. But because of our status, culture, land holdings, that can never happen. If there are no more Indians, there are no more reasons for treaties or Indian laws, so assimilation is always an underlying intent, whether it's acknowledged or not."

Emphasizing Barrett's point, Gorsuch said that such a promise is secured "by divesting States of authority over Indian affairs and by giving the federal government certain significant ... powers aimed at building a lasting peace." By adopting ICWA, he wrote, "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. All of that is in keeping with the Constitution's original design."

Benjamin said she was stunned by the power of Gorsuch's words. "I never expected to see anything like that from this Court," she said.

It is a validation and acknowledgment of tribal self-determination too long overdue, and Gorsuch is to be commended for stating it so plainly and unequivocally.

"I know there are more wars to come over our children," Benjamin said, "But for right now, our children and our status as citizens of a government is intact. We'll see what the next battle will be." She is relieved that at least for now, the decision has been made that tribes are best suited to deciding "what is best for our children. We want them to know their own way of life, their customs and traditions."

She noted that Russia currently is deliberately placing Ukrainian children with Russian families. "What they're doing is widely considered a war crime," she said, "because it's an attempt to obliterate Ukrainian culture and way of life."

"We basically codified ICWA into state law," she said, "so that if federal law went away, we would still have protections."

Asked whether the court decision elevated the rights of tribes over the rights of the individual child, Becker-Finn said, "Why aren't we talking about the rights of states and non-Indian adoptive families being elevated over the rights of the child and the tribe? We cannot continue to perpetuate a system that first devalues Native lives, then uses their reduced circumstances against them."

Gorsuch acknowledged as much in his concurrence: "In all its many forms, the dissolution of the Indian family has had devastating effects on children and parents alike," he wrote. "It has also presented an existential threat to the continued vitality of Tribes — something many federal and state officials over the years saw as a feature, not a flaw. This is the story of [the] ICWA."