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WASHINGTON — As a Supreme Court decision on upholding the Indian Child Welfare Act nears, Alaska Democratic Rep. Mary Peltola voiced concern at a roundtable this week that the 1978 law seeking to keep Indigenous children with Native families could be found unconstitutional.
The Indian Child Welfare Act gives preference to relatives and tribal families for foster care and adoption placements for Native children. The law faces a constitutional challenge in the Supreme Court in Haaland v. Brackeen, where plaintiffs claim the act places children with families based on race, in violation of the Constitution’s equal protection clause. The Supreme Court heard oral arguments in the case in November, and a decision is pending this summer.
Peltola co-hosted a Tuesday roundtable with two Arizona Democrats — House Natural Resources Committee ranking member Raúl Grijalva and Rep. Ruben Gallego — where panelists discussed the measure’s value to Native children.
Peltola, the first Alaska Native in Congress, said she was worried that the Supreme Court could strike down the act. Oral arguments this fall saw the justices divided on the case.
“There were clues about some other really important court decisions that came out and they ended up being true,” Peltola said.
“I’m very concerned that the concerns and predictions that we have about ICWA’s standing may be true within the Supreme Court. And I think it’s just that much more important for the federal level and the state level and the tribal level to be all working together to make sure that we’re protecting ICWA,” she said.
The rest of the Alaska congressional delegation, Republican Sens. Lisa Murkowski and Dan Sullivan, signed onto a “friend of the court” brief in August 2022 defending the act’s constitutionality and arguing that it does not violate the equal protection clause. Eighty-seven members of Congress signed onto the brief.
“Obviously, I’m concerned and I care about it. I’m hopeful based on some of what we heard earlier when that case was heard before the court that we’re gonna be OK on this,” Murkowski said in a brief interview Tuesday. “It is it is something that we’re monitoring very, very carefully.”
Maggie Blackhawk, a panelist and law professor at New York University School of Law, argued during Tuesday’s roundtable that the Indian Child Welfare Act is not based on race but rather treats tribal status as a political category. The Interior Department and the amicus brief signed by Murkowski and Sullivan make a similar case.
“The plaintiffs in the Brackeen challenge ICWA as unconstitutional, but placed in proper historical context, the constitutional challenges to Brackeen are revealed as unfounded,” Blackhawk said.
Peltola referenced her time working as Orutsararmiut Native Council Tribal Court judge involved in custody cases “making sure that the children of our tribe stayed within the custody of tribal families.”
“I think for every single human group ever in existence children are precious. Children are our future. And certainly for Natives, it is no different,” Peltola said.
Peltola said that Indian Child Welfare Act implementation already faces challenges, and a Supreme Court decision striking down the law would be a major setback to placing Indigenous children with Native families.
“ICWA is not working now, after all of these years — it’s still not working to its full potential,” Peltola said. “So why would we undermine it even more?”