Brackeen v. Haaland and the Threat to the Indian Child Welfare Act of 1978

Today the Supreme Court heard oral arguments in a series of cases consolidated into one case, Brackeen v. Haaland, that challenges the constitutionality of ICWA—the Indian Child Welfare Act of 1978. ICWA serves as a protection for Native American families and tribal unity by setting federal standards that prioritize keeping Native American children with their family, their tribe, or a member of another tribe before being placed in non-Native American foster and adoptive homes. Prior to the creation of ICWA, United States governmental policy explicitly worked to remove American Indian/Alaska Native (AI/AN)* children from their families and tribes—including the harmful and unjust separation of AI/AN children from their homes and placement in boarding schools—in a calculated effort to separate them from their culture and heritage. The goal and result of this policy of separation was to wipe out any trace of or loyalty to a child’s Native heritage, including language and practices, and thus, eradicate tribal culture, sovereignty, and way of life. The harm these actions caused are still felt deeply among tribal communities and people.

The creation and enforcement of ICWA was a step toward righting the egregious wrongs of our past as a nation and affirms the tribal sovereignty of First Nations. Brackeen v. Haaland puts this critically important law at significant risk and is a step backward and any ruling against ICWA would be detrimental to the health, well-being, and sanctity of Native children, families, and communities and to our country and society as a whole.

Native children and youth have a unique legal status as citizens of tribal governments with federal laws, like ICWA, that provide important safeguards to help maintain tribal and family relationships which have been under fire from the dawn of United States policy. And even despite these explicit protections in child welfare law, AI/AN children are still at significantly greater risk of child welfare involvement and removal, and are overrepresented within state foster care systems nationally due to surveillance, and the impact of systemic disinvestment, oppression, and historical trauma perpetrated on these communities as a result of federal policy driven by systemic racism. In our current political and social climate where civil rights of all kinds are regularly under fire, it has never been more important to strengthen and uphold the protections offered by ICWA.

In addition to being a crucial protection for Native children and families, ICWA importantly centers families, requiring higher levels state engagement with parents and efforts to keep families together; parent representation in court proceedings; and placement of children with relatives and in their communities when courts determine they can longer safely remain with their parents. Research has found that Native communities are rich in culture, have a deep commitment to family, kinship, and community and are rooted in spirituality. Studies have also shown these strengths not only build healthy communities but play an important role in mitigating trauma and increasing resiliency in Native children and youth. The practice of “active efforts” and engagement of the community is counter to typical child welfare cases where a child’s removal from their family and placement with foster families requires effort only in name (“reasonable effort”). Research has consistently shown that children do best when they can remain with their family and community, and having communities support children and families is critical to the well-being of our society.

ICWA was and is needed both to promote the best interests of children, their families, and their communities—but also as a critical protection of Tribal rights. As we look toward the future and consider best practices and new ways to support children and families, ICWA serves as an example of meaningful policy and practice to keep kids in their families and communities. ICWA was established as an important protection, one that is needed more than ever today. Instead of tearing down ICWA, we need to be focused on continuing to strengthen and protect children, families, and communities by centering culture, family, and community voice in driving solutions to promote their health and happiness.

* AI/AN is used in this blog as a technical term to be consistent with the way the data are collected and presented.