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Tribes File Briefs Defending Indian Child Welfare Act

Above Photo: By Qimono.

ICWA lauded by child advocates as the gold standard in child welfare.

Yesterday, four tribes filed briefs (1 & 2) with the U.S. Supreme Court in Brackeen v. Haaland, **denouncing the latest attempts to overturn the Indian Child Welfare Act (ICWA) and defending the law’s constitutionality. Cherokee Nation Principal Chief Chuck Hoskin, Jr., Morongo Band of Mission Indians Chairman Charles Martin, Oneida Nation Chairman Tehassi Hill, and Quinault Indian Nation President Guy Capoeman issued the following statement:

“The Indian Child Welfare Act is lauded by child advocates as the gold standard in child welfare and has been upheld by courts for over four decades. Yet we continue to see opponents challenge the law in order to undermine its crucial protections for Indian children in the adoption and foster care system.We fight for the Indian Child Welfare Act because we know the importance of keeping our children connected to their families, tribal communities, and heritage. The Indian Child Welfare Act has been defended by both Republican and Democratic administrations. It is a fundamental, non-partisan law and we look forward to the Supreme Court once again upholding its constitutionality.”

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.

In 2017, individual plaintiffs Chad and Jennifer Brackeen, a couple from Texas, along with the state attorneys general in Texas, Louisiana, and Indiana, sued the U.S. Department of the Interior and former Secretary Ryan Zinke to challenge the Indian Child Welfare Act. In August 2019, the Fifth Circuit Court of Appeals reaffirmed that the Indian Child Welfare Act is constitutional. In October 2019, despite having their own adoption finalized, plaintiffs in Brackeen v. Bernhardt continued their attacks on the law and requested an en banc rehearing before the Fifth Circuit Court of Appeals. In April 2021, the Fifth Circuit upheld important aspects of the Indian Child Welfare Act that serve the best interests of Indian children and tribal families.

The U.S. Supreme Court is currently considering review of the Fifth Circuit decision.

The Indian Child Welfare Act has broad, bipartisan support from tribes, states, members of Congress, and presidential administrations, which have recognized that the law is an appropriate exercise of Congress’s authority to legislate in the field of Indian affairs and does not violate the Tenth Amendment or equal protection provisions of the Constitution. Recently, tribes and tribal organizationschild welfare experts, and dozens of state attorneys general from across the political spectrum have filed briefs with the court urging it to protect children and follow decades of precedent by upholding the Indian Child Welfare Act.

The full briefs from the tribes can be found here and here.

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