Five Native American tribes on Friday filed a brief with the U.S. Supreme Court defending the constitutionality of the Indian Child Welfare Act.
The Supreme Court on Nov. 9 will hear arguments on Brackeen v. Haaland, a case challenging the law's procedure for placing Native children in foster or adoptive homes.
ICWA aims to protect Native children by giving their tribe and family opportunities to participate in decisions from which they may have previously been excluded. Enacted in 1978, ICWA came in response to decades of state child welfare and private adoption agencies separating Native children from their families.
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The law requires that states place Native children in foster care first with an extended family member. If that’s not possible, the child should be placed with a family approved by the child’s tribe. And if that’s not possible, the child can be placed with a non-Native agency.
ICWA opponents typically argue the law is unconstitutional, saying it discriminates based on race. Some legal experts disagree. They say the law is based on tribal citizenship, not race.
Tribes file brief
In the brief, Cherokee Nation Principal Chief Chuck Hoskin, Jr., Morongo Band of Mission Indians Chairman Charles Martin, Navajo Nation President Jonathan Nez, Oneida Nation Chairman Tehassi Hill and Quinault Indian Nation President Guy Capoeman explained how ICWA has benefited Native children.
“ICWA is based on a simple idea,” the brief reads. “When Indian children can stay with their families and communities, tribes and children alike are better off.”
Tribal leaders defended ICWA’s constitutionality, saying that the law “protects tribal sovereignty and self-governance by safeguarding children against unwarranted removals by non-Indians and states.”
“Plaintiffs do not represent Indian tribes, families or children but fill their briefs with claims about Indians’ best interests,” the brief reads.
In a statement, tribal leaders said ICWA has received “strong, bipartisan support” and has been “repeatedly upheld” in state and federal courts.
Tribal leaders referred to ICWA as a “gold standard of child welfare laws” and wrote that “if those attacking ICWA are successful, they would not only dismantle a law that is central to our sovereign interests in protecting our children but also create chaos and instability throughout the country by overturning the basic framework of Indian law and the political nature of tribal citizenship.”
If the Supreme Court ruled against ICWA, the leaders warned, “The court would be ignoring decades of precedent, overriding congressional authority and putting our tribal children’s safety at risk.”
Brackeen v. Haaland
Brackeen v. Haaland centers on Chad and Jennifer Brackeen, a couple from Texas who fostered a child eligible for membership in the Navajo and Cherokee tribes, according to The Associated Press.
When the boy’s parents voluntarily ended their parental rights, the Brackeens tried to adopt him. But the state denied their request after the Navajo Nation found a possible home for the boy with a Navajo family. The Brackeens went to court and were able to adopt the boy when that placement fell through. Now, the couple is trying to adopt the boy’s younger half-sister.
Attorneys general in Texas, Indiana and Louisiana as well as other couples have joined the case, suing the federal government and arguing that ICWA is discriminatory.
According to the National Indian Child Welfare Association, Indigenous children are four times more likely to be removed by state child welfare systems than non-Native children, even when their families have similar presenting problems. Native children are also overrepresented in the foster care system, according to the same report.
