By Associated Press
FLAGSTAFF, Ariz. (AP) - The U.S. Supreme Court is considering challenges to a law enacted in 1978 to respond to the alarming rate at which Native American and Alaska Native children were being removed from their homes by public and private agencies.
The U.S. Supreme Court now has taken up challenges to the law three times — in 1989, 2013 and 2022. The current case is the most significant because it raises questions of equal protection under the Constitution.
The justices heard three hours of arguments Nov. 9 and appear likely to leave most of the law in place. The law includes a severability clause, which means parts of it can be struck down while keeping the rest intact.
The high court isn't expected to rule in the case until next summer. Lower courts have split on the case. Find AP's latest story here.
BACKGROUND
The Indian Child Welfare Act, known as ICWA, has long been championed by tribal leaders as a means to preserving their families, traditions and cultures. The law requires states to notify tribes in certain foster care and adoption proceedings involving Native American children who are or could be enrolled in any of the 574 federally recognized tribes.
Placement preference is given to the child’s extended family, members of the child’s tribe or other Native American families, but it doesn’t prevent placement with non-Native families.
The lead plaintiffs are Chad and Jennifer Brackeen, a Texas couple who have adopted a Native American boy and are seeking to adopt his sibling — a proceeding that’s happening outside the U.S. Supreme Court case.
The Brackeens and other plaintiffs contend the Indian Child Welfare Act is race-based, doesn’t consider the best interests of children and unlawfully imposes duties on states.
Native American tribes are politically sovereign nations, meaning they have the ability to govern themselves. A vast majority of federally recognized tribes asked the Supreme Court to uphold the law. They fear widespread impacts to other federal laws that pertain to health care for Native Americans, tribal gambling operations and public education for Native students if the justices dismantle tribes’ political relationship with the U.S. government.
STATES THAT HAVE CODIFIED ICWA
At least 10 states have incorporated aspects of the federal Indian Child Welfare Act into their own laws, according to Turtle Talk, a blog that covers legal issues affecting tribal communities. They are:
CALIFORNIA
IOWA
MICHIGAN
MINNESOTA
NEBRASKA
NEW MEXICO
OKLAHOMA
OREGON
WASHINGTON
WISCONSIN
Whether these laws will stand depends on what the court decides, particularly if the decision centers on a racial versus a political classification for Native American tribes.
“The states can only treat Indians as a political classification to the extent that the feds can,” said Dan Lewerenz, assistant law professor at the University of North Dakota who is a member of the Iowa Tribe of Kansas and Nebraska.
REPORTING THREADS
— Many states across the political spectrum filed briefs in support of the Indian Child Welfare Act. Others changed stances while the case, initially filed in a U.S. District Court in Texas, made its way to the Supreme Court. Where does your state stand on ICWA?
— Reach out to tribal officials, inter-tribal agencies, community centers for Native Americans in urban areas or tribal liaisons for state agencies to ask whether they know of any tribal members who might be willing to share their experiences with foster care or adoption proceedings. Think about whether a story might best be told through the eyes of the children themselves, the parent or the community.
— Similarly, are there non-Native families who have fostered or adopted Native American children who might share their experiences. How do they seek ways to keep the children connected to their Native culture?
— When ICWA was passed, between 25% and 35% of Native American children were taken from their homes and places mostly with white families. Seek data from state and tribal child welfare agencies to see how things have changed in the decades since. What proportion of state cases involve Native Americans? To what extent does your state comply with ICWA or its own laws?
— Examine the arguments made in the Brackeen case. Is there similar language in other cases in your state that targets tribes' political status and their ability to govern themselves?
— Research the ways in which tribes in your area are working to shore up the foster care system in the community. Some tribes have held recruiting events to encourage people to foster children and help them navigate the system. How have tribes in your area bolstered resources for Indian Child Welfare Act cases?
CASE DOCUMENTS
Multiple cases were consolidated under Supreme Court docket 21-376, Haaland vs. Brackeen.
Briefs filed in the case overwhelmingly support the Indian Child Welfare Act, including from the American Civil Liberties Union,Casey Family Programs, and the American Academy of Pediatrics and the American Medical Association.
Among the opponents of the law were the Goldwater Institute, which has long argued that ICWA is unconstitutional, and the Christian Alliance for Indian Child Welfare.