The Indian Child Welfare Act (ICWA) has been a federal law for more than four decades to keep Native children up for adoption in households with similar cultural backgrounds.
But the measure is now facing what could be its strongest threat in the Supreme Court. Tribal leaders and advocates say if the nation’s highest court takes up the case Brackeen v. Haaland this term, the decision could unravel not only the ICWA but a wide range of laws affecting Native Americans across the nation.
“This truly at its core is not a case about kids or child welfare at all,” says Kimberly Cluff, Legal Director of the California Tribal Families Coalition.
“This is an attack on what it means to be a sovereign nation, to be a tribe and to self govern.”
Indian Child Welfare Act
The ICWA was enacted in 1978 in response to a crisis affecting Indigenous children. Studies showed Native kids were being separated from their families and communities at alarming rates by both government and private agencies. Placing Native children with non-Native families also stripped the kids of their traditions and culture.
That includes the federal government forcing Native children into what some describe as deadly boarding schools.
“One-third of all tribal children were forcibly removed from their families, and it really jeopardized the tribal culture of our government,” Morongo Tribal Chairman Charles Martin tells KCRW.
The Morongo Band of Mission Indians is one of four tribes across the nation that joined the federal government’s petition to uphold the ICWA.
Chairman Martin says the law is integral for keeping families together in foster case proceedings.
“These children, once they get out of the system, they lose contact with their familial ties. In addition to that, the children deserve to learn about their language or culture and the community.”
But the law isn’t just important to him as a tribal chairman — it’s personal too. He participated in the program and raised his great nephew, whom he calls his son.
“He does get to participate in family events and cultural events. When he grows up, he won’t be missing that cultural tie to his Native peoples because he is still in our community.”
Tribal leaders and community advocates say all that could be threatened by Brackeen v. Haaland if the Supreme Court considers it this term.
The legal challenge
The ICWA has faced several unsuccessful legal challenges since its conception. It has gone to the Supreme Court twice but survived both times.
However, Cluff says Brackeen v. Haaland is different from those previous attempts.
“The forces behind [Brackeen v. Haalan] really see the Indian Child Welfare Act as a way to strike at the heart of tribal sovereignty, so Indian countries [are] taking this case very seriously.”
Brackeen v. Haaland revolves from a Texas case in which a white Evangelical family, the Brackeens, were seeking to adopt a child from the Cherokee and Navajo nations. Under the ICWA, the Navajo nation stepped in and found a Navajo family who could care for the child instead. The Brackeens eventually won their bid after the Navajo nation dropped out of the case.
The case still made its way through the courts. The Brackeens were joined by some other families and the states of Texas, Louisiana and Indiana. A Texas judge found the ICWA unconstitutional. The case then went to the 5th Circuit Court of Appeals, which reversed the Texas decision. It’s now moving its way up to the Supreme Court and advocates believe it will very likely be taken up this term.
Arguments against the ICWA say the law is race-based discrimination and violates the Equal Protection Clause under the 14th Amendment and anti-commandeering doctrine.
To those like the Brackeens, who say children in need are stuck in limbo because of the ICWA, Cluff responds that the law is considered the gold standard of child welfare practice.
“For example, the Casey Foundation, a well-known and well-respected child welfare organization in the United States, came out and said it was truly the best practice for children in the child welfare system, not just Indian children.”
Cluff says the Brackeen case is a “facial challenge” on the constitutionality of the ICWA.
“It’s not challenging one small provision or other provision. It is challenging the overall constitutionality of the idea that Indian children should have rules that help them stay connected in the law.”
The case is what some say is the latest right-wing attempt to take down tribal sovereign laws, which ensures tribes have the right to develop their own court systems, economic engines, clinics and schools.
“If the Supreme Court were to strike down the whole concept and all the federal Indian law history, then you would see a dramatic change in the rights of tribes to self govern,” says Cluff.
Chairman Martin agrees. He says tribes lose their rights to offer gaming and to protect reservation land and water rights along with their abilities to provide public safety and social services on the reservations.
Out of the 574 tribes in the United States, not one has come out saying the ICWA should be struck down.
Cluff believes that shows just how much tribes understand that if the ICWA goes, so does tribal sovereignty.
“[The case] is much more about undermining the sovereignty of tribes.”
Tribal leaders and advocates are on the edges of their seats waiting to hear when the Supreme Court announces it’s taking up the case. Legal advocates say current procedures indicate it will most likely be addressed in the next few months.
Chairman Martin says he and the other tribes involved in the legal fight will head over to Washington D.C. to support their legal teams.
“We will never give up the struggle to protect the Indian children and tribal sovereignty.”