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Cherokee Nation, Others Set To Defend Indian Child Welfare Act

Above photo: The United States Supreme Court Building located in Washington, D.C. 

Tahlequah – Constitutionality of the 1978 Indian Child Welfare Act is the focus of an upcoming U.S. Supreme Court review in which the Cherokee Nation and other tribes will play supporting roles.

The federal ICWA legislation, promoted for decades as a means of preserving Native families and culture, gives Native American families priority in foster care and adoption proceedings involving Native children. Chad and Jennifer Brackeen, of Texas, initiated a lawsuit in 2017 alleging that the ICWA is unconstitutional. Since then, the case has worked its way through the lower courts. In late February, the Supreme Court agreed to review the case based upon petitions from both sides. Arguments are scheduled to take place Nov. 9.

“ICWA has proven itself as the gold standard of child welfare law, which is why both Republican and Democratic administrations, tribes and tribal organizations, and child welfare experts continue to defend it,” a joint statement released earlier this year by the Cherokee Nation, Morongo Band of Mission Indians, Oneida Nation and Quinault Indian Nation says. “We will never accept a return to a time when our children were forcibly removed from our communities and look forward to fighting for ICWA before the court.”

In a 325-page decision surrounding Brackeen v. Haaland, the Fifth Circuit U.S. Court of Appeals in 2021 upheld the longstanding law and Congress’ authority to enact it. But ICWA proponents say the judges also wrongly ruled against key provisions of the law, including a determination that the adoptive placement and preference for an “Indian foster home” violated equal protection.

According to the nonprofit Native American Rights Fund, nearly 500 tribal nations, dozens of Native organizations, 20-plus states and others have signed on to briefs submitted to the U.S. Supreme Court in favor of upholding the ICWA.

“This large, bipartisan coalition of tribal leaders, policymakers and organizations understand that the far-reaching consequences of challenging ICWA’s constitutionality in Haaland v. Brackeen will be felt for generations,” the organization says. “On the opposing side, those who seek to dismantle ICWA have shown that they do not care about what is best for Native kids. They say they want the best for Native children, but not a single tribal nation, not a single independent Native organization and not a single independent child welfare organization supports their cause.”

The Cherokee Nation and other tribes have intervened in the Supreme Court case as defendants. They were also involved in previous legal proceedings.

The Brackeens, along with the state attorneys general in Texas, Louisiana and Indiana, initially sued the U.S. Department of the Interior and former Secretary Ryan Zinke to challenge the ICWA. The couple provided foster care for a baby eligible for citizenship in the Cherokee and Navajo nations, and petitioned to adopt after the boy’s parents voluntarily terminated their parental rights. When placement with a Navajo family failed, the couple was allowed to keep the baby after fights in court.

In 2020, Hoskin described the ICWA as having been “very effective” over the years.

“It doesn’t absolutely mandate that children subject to adoption that are citizens or could be citizens of an Indian Nation must be adopted by an Indian family, but it does create that preference,” he said at the time. “It creates a system in which the courts of this country have to respect the sovereignty of an Indian tribe by affording the tribe notice. We believe (the ICWA) respects our sovereignty and the sovereignty of all Indian nations. We believe it is in the best interests of Indian children not to return to a time in which the adoption industry and mainstream society takes them away from their families.”

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