On Monday, the U.S. Supreme Court agreed to hear challenges against the Indian Child Welfare Act, or ICWA, in a case known as Brackeen v. Haaland. The outcome of the case could have far-reaching consequences for the 44-year-old law.
ICWA was established after decades of Indian children being removed from their homes by non-Native social workers and religious institutions and placed with non-Native families. Native American rights advocates helped pass the law with the goal of keeping Indigenous children connected to their culture and families.
The law demands that when Native children are removed from their home for any reason, exhaustive efforts must be made to keep the child with the family, the tribal nation with which they are affiliated or with another Native family. Opponents of the law say it is unconstitutional and that it discriminates against non-Native couples who want to adopt Native children.
Those exhaustive efforts are part of what is being challenged by the plaintiffs in this case.
“These are some of the provisions the opposition is concerned about," said Sarah Kastelic from the National Indian Child Welfare Association. "I think overall we see more and more research that shows that these kinds of practices are really in the best interests of not just Native children but all children.”
In 2017, individual plaintiffs Chad and Jennifer Brackeen, a couple from Texas, along with the state attorneys general in Texas, Louisiana, and Indiana, sued the U.S. Department of the Interior and former Secretary Ryan Zinke to challenge ICWA. In August 2019, the Fifth Circuit Court of Appeals reaffirmed that ICWA is constitutional.
Last year, the podcastThis Landexplored the Brackeen case and revealed that Jennifer Brackeen wrote in an online blog that the law had good intentions but was "outdated." Even though the Brackeens were able to proceed with the adoption, they still went on to challenge the law.
In October 2019, the Brackeens requested a rehearing before a panel of judges on the Fifth Circuit Court of Appeals. In April 2021, the Fifth Circuit upheld aspects of ICWA that tribal nations say serve the best interests of Indian children and tribal families.
A statement from the Cherokee Nation, Morongo Band of Mission Indians, Oneida and Quinault Nations said they are pleased that the nation's highest court has granted a re-hearing of certain aspects of the law.
"As leaders of our respective tribes, we know the importance of keeping our children connected with their families, communities, and heritage," read a statement released by leaders of the tribal nations who are defending the law. "ICWA has proven itself as the gold standard of child welfare law, which is why both Republican and Democratic administrations, tribes and tribal organizations, and child welfare experts continue to defend it."
The Native American Rights Fund (NARF) and the National Indian Child Welfare Association (NICWA) say the law has bipartisan support. Dan Lewerenz, of NARF says the law doesn't lend itself to the usual liberal/conservative line drawing that other issues do. In 1978, when the law was passed, Arizona Senator Barry Goldwater, for whom the conservative think tank that opposes the law is named, voted for ICWA's passage.
“What the plaintiffs are trying to do would upset more than 200 years of precedent in federal Indian law and we have faith that the court is going to see past this,” Dan Lewerenz of NARF said.
Arguments will take place during the court's next term.
