HISTORY AND CULTURE

The long-awaited Supreme Court decision on Haaland vs. Brackeen was handed down on Thursday, June 15, 2023. In a 7-2 vote, the justices affirmed the constitutionality of the Indian Child Welfare Act and voted to leave ICWA intact. The challengers cited ICWA as “against federal authority, an infringement on state sovereignty and discrimination based on race,” and the justices wisely rejected all these claims. This is a major victory for Native American children, tribes and federal Indian law.

Despite this good news, PWNA will be monitoring this because the opinion left a door open for future challenges to ICWA. This time around, the justices looked at whether ICWA imposes a federal mandate on state-regulated areas of power like family law. The door left open centers more around whether ICWA gives an unconstitutional racial preference to Native parents.

In establishing ICWA, the intent of Congress was to “protect the best interests of Indian children and to promote the stability and security of Indian tribes and families” (25 U.S.C. § 1902). In fact, ICWA sets forth specific federal requirements for state child custody proceedings involving Indian children.

Congress did this because 25% - 35% of all Native children were being ‘scooped’ away from their parents without clear issues being presented. 85% of them were being placed mostly with middle class, White families — even when fit and willing Native relatives were available.

In addition, the case before the Supreme Court argues that ICWA is based on race and imposes federal control over a state-regulated area like family law. ICWA is an obligation tied to the U.S. government upholding its treaty obligations and promises to sovereign tribal nations. So, reversing ICWA could undermine hundreds of years of tribal sovereignty and diminish the United States’ trust and responsibility to Native communities.

To learn more about the history of ICWA and how you can be an advocate, download the ICWA Fact Sheet.

Topics discussed are:

• When and why was ICWA passed?
• How has ICWA impacted Native children and tribes?
• How do courts enforce ICWA regulations?
• How would a reversal of ICWA impact tribal sovereignty and why?
• What else might a reversal of ICWA impact?
• Why is ICWA such an untold story?
• How can a concerned citizen make a difference today?

More Resources:

• Indian Child Welfare Act
• Boarding Schools
• “Treaties Made, Treaties Broken”
• HHS Child Information Gateway

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