Alaska Native tribes and groups call Indian Child Welfare Act ruling a win for tribal sovereignty

WASHINGTON — Alaska Native groups on Thursday celebrated the Supreme Court’s ruling upholding the Indian Child Welfare Act.

The Indian Child Welfare Act gives preference to relatives and tribal families for foster care and adoption placements for Native children. The plaintiffs in the case, Haaland v. Brackeen, argued that placements under the 1978 law are based on race and violate the equal protection clause of the Constitution, while tribes argued the act should stand because they are political entities.

Many Alaska Native groups — and Native American groups nationwide — called the ruling a landmark win for tribal sovereignty.

“Like most Alaska Native and American Indian tribes from across the country, we have been anxiously awaiting this decision,” Alaska Federation of Natives President Julie Kitka said in a statement. “The wait is over, and the victory is ours. Our ways of life will continue through our children.”

Groups around the state had supported the defense of the Indian Child Welfare Act by signing “friend of the court” briefs. In August 2022, more than 150 tribal organizations around the state signed onto one such amicus brief.

The managing attorney for the Alaska office of the Native American Rights Fund, Erin Dougherty Lynch, aided with that brief. Lynch said Thursday that she was “thrilled with the decision.”

“The opinion is very strongly grounded in longstanding principles of federal law,” she said. “And it’s very affirming for a lot of people.”

Lynch noted that Alaska experiences high rates of disproportionality — Alaska Native children represent 55% of children in state custody, while Alaska Native people constitute about 15% of the state’s population.

The case upholds the status quo, and for those currently involved in Indian Child Welfare Act cases, “nothing has changed,” according to Lynch.

She said that although the case was centered on the Indian Child Welfare Act, if the court had agreed with arguments that the law is unconstitutional, that decision could have threatened many other federal laws relating to both tribes and child welfare.

“I see this decision as a strong affirmation that ICWA is the law of the land and that it should be a call for all of us to redouble our efforts to increase ICWA compliance — the state can always do better,” she said.

Alex Cleghorn, senior legal and policy director at the Alaska Native Justice Center, said his reaction was “one of relief and joy.”

“Part of the reason it is a relief is that now tribes and tribal advocates can turn our attention back to serving our people, as opposed to playing defense on this issue,” Cleghorn said in an interview. “I hope that this decision answers any lingering questions that anyone has about the constitutionality of ICWA and we can move forward spending our energy on other issues.”

Other Alaska Native organizations cheered the decision Thursday.

“I feel like we can all finally breathe a sigh of relief knowing the constitutionality of this landmark law has been upheld,” Richard Chalyee Éesh Peterson, president of the Central Council of the Tlingit and Haida Indian Tribes of Alaska, said in a statement. “This is welcomed news for tribes, our children and families, and future generations. We are sovereign nations with more than 10,000 years of history and have the right to self-determination.”

“Today’s ruling protects what Tribes and our families have always known, connection to culture and identity is critical to the health and well-being of our children, families, and communities,” said Valerie Nurr’araluk Davidson, president and CEO of the Alaska Native Tribal Health Consortium, in a statement.

Alaska’s congressional delegation also lauded the ruling. Alaska Democratic Rep. Mary Peltola, the first Alaska Native to serve in Congress, said she was “overjoyed” by the decision, which “affirmed both the sovereignty of tribal governments and the irreplaceable bonds of Indigenous family.”

“This decision provides certainty and security for children and families all across this country, and respects the basic principles of self-governance for Native American tribes,” Peltola said in a statement. “This is an important step in continuing the process of intergenerational healing from long histories of separation and loss, and a victory for tribal advocates everywhere.”

Alaska Republican Sens. Lisa Murkowski and Dan Sullivan had signed also onto an amicus brief from 87 members of Congress in August 2022 defending the Indian Child Welfare Act’s constitutionality.

Sullivan said he was “pleased” in an interview Thursday. Murkowski — ranking member on the Senate Committee on Indian Affairs — called the decision a “victory for Native people” in a statement.

Though the state of Alaska had previously signed onto amicus briefs supporting ICWA, Alaska Attorney General Treg Taylor did not join a 2022 brief from 23 state attorneys general and Washington, D.C.

Tlingit and Haida President Peterson was “disappointed there wasn’t more support and proactive action” from the state on the case, according to the tribes’ Thursday statement, adding, “Alaska tribes need reassurance from the Office of the Governor the State of Alaska will honor the intentions of ICWA and reaffirm its commitment to protecting the well-being and best interest of Alaska Native children and families.”

In a statement, Taylor said, “we carefully reviewed the amicus brief authored by California’s Attorney General and evaluated the merits of the arguments in that brief. It was a difficult decision, but I ultimately determined not to join ... the decision was not based on any policy position from the administration nor my own policy position. We understand the importance of state-tribal relationships, especially in the child welfare arena.”

In response to a follow-up question about his reasoning for not signing on, Taylor said, “the decision was based purely on the legal arguments presented and concerns that some of the interpretations of constitutional doctrines such as anti-commandeering and non-delegation conflicted with legal interpretations and arguments the State is making in other cases.”

“To prevent presenting inconsistent arguments to the Court, we chose to rely on the brief filed by the other states,” he said in a statement. “I thought that the California authored amicus brief and others filed in the case more than adequately argued in favor of preserving ICWA.”

“Our commitment to partnership, communication and collaboration with Tribes in Alaska is steadfast. We understand and appreciate the value Tribes bring to child welfare in Alaska,” Taylor said.