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On Wednesday, the Supreme Court heard arguments for a landmark case, Brackeen v. Haaland. The case challenges the validity of the 1978 Indian Child Welfare Act (ICWA) that was passed to protect Native children from family separation. ICWA was initially implemented to remedy the fact that in the 1970s about 25-35% of Native American children were in the foster care system, and many were being raised outside of their Native culture.

During what has been deemed “Indian Adoption Era,” the Bureau of Indian Affairs and the Child Welfare League of America facilitated the federal Indian Adoption Program from 1958 through 1967. This program led to 85% of Native adoptees being placed with non-Native families, despite “race-matching” adoption policies being the norm at the time. This occurred as many of the American Indian boarding schools were shuttering their doors, after decades of cultural genocide against generations of Native Americans.

Critics say that the program was an extension of cultural genocide, as most of the children affected by this program were placed in white homes and raised without a connection to their culture. ICWA was established as a response to ensure that more Native American children were placed in what are considered culturally relevant placements to ensure that Natives can maintain a connection to their community and culture.

The American Civil Liberties Union (ACLU) and 12 ACLU state affiliates have filed an amicus brief along with 497 Tribal Nations, including the Flathead Nation; 62 Native organizations, 20 states and Washington DC, 87 congressional members, and 27 child welfare and adoption organizations, and many others signed on to 21 briefs submitted to the USSC in favor of upholding ICWA. 

Theodora Simon, Indigenous justice advocate with the ACLU of Northern California feels that ICWA was necessitated by past government policies. “Throughout history, the United States government has enacted countless policies to steal Indigenous children from their homes and to erase their identities,” said Simon, a Navajo. “The explicit goal of these policies was, and continues to be, the complete erasure of Indigenous people. If the Indian Child Welfare Act is overturned, tribes will again be stripped of their right to keep their families together. This is a tragedy as we know that having connection to our cultures, languages, and identities is in the best interest of Native children.”

So why is ICWA now being challenged after being in place for 44 years? One argument by ICWA opponents is ICWA is unconstitutional because it is race-based and say that because of this it may not be in the child’s best interest. They argue that race should not be considered when choosing where to place a child. However, proponents argue that ICWA is not about race, as tribal nations are not federally recognized as racial groups, but instead share a government-to-government relationship with the federal government. 

ICWA supporters claim that there is a bias against Natives when it comes to placing Native children who have been removed. “ICWA is tailored to reflect that — contrary to Plaintiffs’ assertions — Indian families and Tribes are best positioned to raise their children, both for the best interest of the children and the stability and well-being of the tribe,” says the ACLU.

Some critics of ICWA also have concerns that it leads to less Native children being placed in homes if there are no tribal families available to adopt a child, but ICWA does not state that Natives must be placed in Native homes. Rather, it gives tribes exclusive jurisdiction over children enrolled to their tribes. ICWA’s stated goal is to “Protect the best interests of Indian children and to promote the stability and security of Indian tribes and families.”

ICWA sets minimum federal standards for child custody proceedings regarding Native children. These custody proceedings include adoption, voluntary and involuntary termination of parental rights, and removal and foster care placement of Native children. These standards include preferred placement with family members, in addition to members of ones tribe

According to Yolanda Page, an attorney for the Confederated Salish and Kootenai Tribes who works closely with ICWA cases, people have misconceptions about what exactly ICWA is. She said it is not triggered by parent-to-parent custody battles nor is it triggered if tribal Child Protective Services removes a child from their home due to safety concerns. In both cases, ICWA would not be triggered because it's not the state removing children. ICWA’s stated goal is to “Protect the best interests of Indian children and to promote the stability and security of Indian tribes and families.”

In an op-ed for the ACLU, Simon said “Overwhelming evidence has found that being removed from homes and disconnected from culture, tradition, and identity profoundly harms Native children.” She states that a challenge to ICWA is a challenge to Native American sovereignty, family structure, culture, and identity.

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