Story at a glance
- The Indian Child Welfare Act sets federal standards to prioritize keeping Native American children with their nuclear or extended family, their tribe or a member of another tribe before being placed in non-Native American foster and adoptive homes.
- The law was enacted by Congress in 1978 after the federal government recognized past government programs resulted in the widespread and unwarranted removal of Native American children from their families over the previous century.
- But now four different cases — consolidated under Brackeen v. Haaland — are calling the law’s constitutionality into question.
The Supreme Court this fall will hear oral arguments in a series of four consolidated cases challenging the constitutionality of a landmark law that aims to prevent the separation of Native American children from their families and tribes in welfare proceedings.
The Indian Child Welfare Act (ICWA) sets federal standards to prioritize keeping Native American children with their nuclear or extended family, their tribe or a member of another tribe before being placed in non-Native American foster and adoptive homes. It essentially establishes the right of a Native American child to live with a Native American family and stay connected to their culture.
The law recognizes that tribes have sovereignty and exclusive jurisdiction over their members who live on tribal land and establishes a process for transferring custody cases to tribal court in other instances.
The law was enacted by Congress in 1978 after the federal government recognized that state child welfare and private adoption agencies separated large numbers of Native American children from their parents, extended families and communities over the previous century. Such separations also took place during the federal Indian boarding school era, when hundreds of thousands of Native American children were forcibly removed from their homes and placed in boarding schools to assimilate into American culture.
For example, the stated mission of the first boarding school in the 1890s on the Navajo reservation was “to remove the Navajo child from the influence of his savage parents.”
State and private agencies removed as many as 25 to 35 percent of Native children from their families and placed many in non-Native foster homes before the law was enacted.
But now the constitutionality of the law is being called into question through four different cases consolidated under Brackeen v. Haaland. Plaintiffs include several non-Native couples trying to adopt or foster children from tribal nations, a woman who wants her child of Native descent to be adopted by non-Native people, and the states of Texas, Louisiana and Indiana.
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At the center of Brackeen v. Haaland is Chad and Jennifer Brackeen, a Texas couple who fostered a baby eligible for membership in both the Navajo and Cherokee tribes. The Brackeens tried to adopt the boy after his parents voluntarily ended their parental rights, but the state denied their request when the Navajo Nation found a potential home with a Navajo family.
After going to the court, the Brackeens successfully adopted the boy in 2018 when the placement with the Navajo family failed, but now the couple is looking to adopt the boy’s younger half-sister.
Attorneys general in Texas, Indiana and Louisiana joined the case against the federal government. The plaintiffs argue the ICWA is unconstitutional, it violates the Equal Protection Clause by discriminating on the basis of race and ultimately hurts children as it can prevent them from being placed in a permanent home.
A federal district court judge in 2018 ruled the ICWA was unconstitutional, which was appealed. The Supreme Court agreed to hear the case after the Fifth Circuit Court of Appeals ruled some parts of the ICWA are constitutional while others violate the anti-commandeering policy of the Constitution.
Proponents of the ICWA say the law’s protections are not based on race as tribal status is a political distinction rather than a racial one.
Presently, Native families are four times more likely to have their children removed and placed in foster care compared to white families, according to the National Indian Child Welfare Association.
Hundreds of recognized tribes, dozens of Native organizations, 23 states and the District of Columbia and 87 members of Congress have filed at least 21 amicus briefs to the Supreme Court in favor of the ICWA.
Arguments in the case are scheduled before the high court Nov. 9.
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