Competing rights and interests.

• Date: 30 November 2022
• Author: Herman, Gregg

Byline: GREGG HERMAN

On Nov. 6, the United States Supreme Court heard oral arguments in Brackeen v. Haaland, a case which presented numerous constitutional and legislative issues regarding the Indian Child Welfare Act or ICWA.

The case presents some incredibly difficult legal and public policy issues. How difficult? In 2012, the late Justice Antonin Scalia called a dispute arising from the adoption of Native American twins the most difficult case he ever had during his time on the Supreme Court.

The ICWA was passed by Congress and became law at a time when as many as one-third of all Indigenous children were taken from their homes. The vast majority were sent to live with white families or in residential boarding schools. The ICWA grants tribal children the right to foster care placements that...