The court’s opinion in the case Haaland v. Brackeen upheld the federal Indian Child Welfare Act (ICWA), a 1978 law that gives tribal governments exclusive jurisdiction over Native children who live on reservations. Considered to be the “gold standard” of child welfare policy, ICWA has protected the continued existence of Indian tribes and their most vital resource — Indian children — for 45 years. By a 7-2 margin, the court today reinforced ICWA by affirming an appellate court en banc ruling that challenged some aspects of the law’s constitutionality. The nation's highest court found that ICWA does not discriminate on the basis of race and does not impose an undue burden on states.
Indian Child Welfare Act
Washington - November is Native American Heritage Month, when we recognize and celebrate the first peoples of this continent; their resilience, accomplishments, and traditional knowledge. In 2009, President Obama signed “The Native American Heritage Day Resolution,” designating the Friday after Thanksgiving as “Native American Heritage Day.” On this highly commercial day, many United Stated consumers give very little thought about the indigenous people of this land, but the Confederated Tribes and Bands of the Yakama Nation encourages you to take a moment to confer. To observe Tiinmamí alxayx, explore the history of this land. The Yakama ancestors and those of the related tribes and bands, lived, traveled, traded, and practiced traditional and religious ceremonies across this region.
In a federal case that many advocates in Indian Country consider to be the most significant threat to sovereignty in modern times, not a single Native voice presented as part of oral arguments before the U.S. Supreme Court. At issue is the fate of the Indian Child Welfare Act (ICWA), a 43-year-old federal law designed to keep children who are tribal members with Native families. The law came in response to hundreds of years of tribes being decimated by the forced separation of children and families, in which children were often placed in residential boarding schools and subject to horrific and sometimes deadly abuse. Congress enacted ICWA less than a decade after the Association on American Indian Affairs found that 25 percent to 35 percent of all Native children had been removed from their families and placed in foster homes, nine out of 10 times with non-Native parents.
Oneida, Wisconsin – On November 9, over 50 people gathered on the Oneida Indian Reservation in northeast Wisconsin to show solidarity with the Oneida people and all indigenous people as a Supreme Court decision regarding the Indian Child Welfare Act (ICWA) looms. The crowd included members of the Oneida Tribal Nation, concerned community members and several organizations that helped facilitate the event. The gathered community members, both tribal and not, were met with hospitality from the Oneida hosts, with homemade corn soup and community-building conversation being shared before the speakers began. The first speaker had firsthand experience seeing the effects of harsh U.S. policy concerning the children of oppressed groups.
Washington D.C. - This morning Indigenous organizers and allies shut down the lobby of the Gibson Dunn law firm in Washington D.C, protesting their involvement in trying to strike down the Indian Child Welfare Act for their big oil client, Energy Transfer. The Supreme Court is hearing arguments on Haaland v Brackeen today and will decide if they will gut ICWA in 2023, which will further weaken tribal sovereignty. Organizers entered the lobby with a drum singing prayer songs before security removed them from the building. Matthew McGill, a lawyer at Gibson Dunn, is representing the Brackeens in this case pro bono, alongside Paul Clement, an attorney who has a history of regularly attacking existing Indian law and worked to disestablish the Mashpee Tribe’s reservation in 2020.
Today is Indigenous People's Day, still celebrated by some as the violent colonizer Christopher Columbus Day. Clearing the FOG speaks with Jean-Luc Pierite of the North American Indian Center of Boston (NAICOB) and United American Indians of New England (UAINE) about the growing recognition of the trauma and murder of American Indian children who were sent to assimilation centers called residential schools across the US and Canada and how that theft of children's cultural heritage and identity continues today through the foster care system. A major Supreme Court case that could destroy the Indian Child Welfare Act is set to be heard in November. Pierite also discusses the campaign in Massachusetts to recognize Indigenous People's Day statewide, the Massachusetts Indigenous Legislative Agenda and the work being done in solidarity with indigenous peoples around the world and the Black Lives Matter movement to create a path to a better future.
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.
In the briefs, the tribes call on the court to reject the petitioners’ latest attempts to overturn the Indian Child Welfare Act, which fundamentally misrepresent the law and the facts on tribal sovereignty and congressional powers to allege “race discrimination” where it does not exist. The tribes demonstrate that the Indian Child Welfare Act’s placement preferences fall “well within Congress’s broad powers over Indian affairs and classify based on tribal political affiliation, not race,” and that both the Brackeens and the state of Texas lack standing to pursue their claims.
Cetan Sa Winyan, director of the American Indian Movement’s Indian Territory Oklahoma chapter, said all tribes -- not just the four already petitioning the U.S. Supreme Court -- should stand together against potential changes to the Indian Child Welfare Act in a case the court has been asked to review. “They closed the boarding schools and opened up CPS (Child Protective Services), but it’s the same thing -- they’re still coming in and taking our children,” Winyan said. The ICWA was enacted in 1978 to help keep Indigenous children in Indigenous homes. In ICWA cases, the first preference for placement is that the child go to an extended family member, even if the relative is non-Native. Second preference is someone within the child’s tribe; third preference is another tribe.