BACKGROUND:
ICWA, which deals with child welfare cases concerning its citizens, also reaffirms the natural rights of tribal nations. ICWA ensures that Indian children who have ties to their community and culture are retained, thereby promoting family unity and stability. The Indian Child Welfare Act (ICWA) is a federal law that is 43 years old and safeguards the welfare and optimal interests of Indian children and families.
(ICWA) v. Brackeen (formerly Brackeen v. Zinke and Brackeen v. Bernardt) is the most notable lawsuit and opposition to ICWA. The aim of anti-tribal interests has significantly weakened tribal sovereignty, leading to a succession of legal disputes against ICWA in recent years. The law, which has been regarded as the benchmark in child welfare practice by child welfare specialists for many years, has provided fairness and healing to numerous Indian children and families through state child welfare systems.
The Brackeen case had the involvement of the Native American Rights Fund (NARF) in two different ways.
Information about the case can be found on the website of the Tribal Supreme Court Project.
They recognize effective and fair governance, acknowledging that collaboration between sovereign Tribal Nations and state child welfare systems is an example of such governance. The positive outcomes, which encompass higher self-esteem and academic achievement, extend to keeping them connected to their extended family and cultural heritage. These advocates firmly acknowledge the best interests of Native children, recognizing that ICWA aligns with those interests. At the lower court in Brackeen v. Haaland, support for ICWA was provided by 77 members of Congress, 26 states + DC, 31 child welfare organizations, 59 Native organizations, and 486 Tribal Nations. Impressive support for Indian Country and ICWA is seen from a wide range of stakeholders both within and outside of Indian Country. ICWA enjoys widespread support from an impressive range of stakeholders within and outside of Indian Country.
The Litigation:
The Supreme Court has consistently dismissed claims that federal Indian laws infringe upon the Equal Protection Clause, based on the Indian Commerce Clause or surpass Congress’ jurisdiction, and this ruling was groundbreaking in numerous respects. In 2018, a federal district court in Texas controversially ruled that ICWA contravenes the U.S. Constitution.
The decision of the court affirmed the constitutionality of ICWA, recognizing the unique political status of Indian tribes and upholding the critical federal law safeguarding Indian child welfare. In August 2019, a three-judge panel from the Fifth Circuit Court of Appeals reversed the district court’s decision. Four tribes, seven members of Congress, and 31 Indian law scholars and child welfare organizations filed briefs urging the Fifth Circuit to uphold the Indian Child Welfare Act. Additionally, 21 states and 31 child welfare organizations also supported the act.
It is well known that the Indian Child Welfare Act (ICWA) serves as an essential protection for the well-being of our children, which has historically been neglected and ignored. The support for ICWA is consistent and strong, with individuals, organizations, and tribes all working on child welfare issues. Therefore, I am not surprised, but rather happy, by the number of signatories who joined the brief in support of the Indian Child Welfare Act, as mentioned in John Echohawk’s Executive Director of NARF brief on December 13th. In December 2019, Native organizations, Native Alaska Tribes, and federally recognized American Indian Tribes filed a brief defending the constitutionality of the Indian Child Welfare Act. This review by the entire circuit court holds significant legal importance due to the complex and broad nature of the cases. The Fifth Circuit Court agreed to conduct an en banc review in November 2019.
The court released a 325-page, fractured panel en banc in April 2021, which held that certain sections of the ICWA were also found to be unconstitutional and that the ICWA’s basis of operation should not be on race. Although the decision generally upheld Congress’s authority to enact the ICWA.
The lawsuit was set to be heard in November 2022 and the parties’ legal documents were filed during the spring and summer of 2022. The highest court approved all four requests and combined the lawsuit in February 2022. In September 2021, the U.S. Department of Justice, tribal nations intervening, and Texas and individual Plaintiffs formally requested the United States Supreme Court to review the Fifth Circuit’s decision made by all the judges.
During the Supreme Court briefing, we witnessed a bipartisan coalition of tribal leaders, policymakers, and organizations who understood the far-reaching consequences of challenging the constitutionality of ICWA in the Brackeen v. Haaland case. Many others, including 21 organizations, 27 congresspeople, 87 DC states, 23 child welfare and adoption organizations, 62 Native Nations organizations, and 497 Tribal Nations, signed briefs in support of upholding ICWA. It was evident that those who championed ICWA recognized its true breadth.
ICWA is a case that respects and upholds tribal sovereignty, but it is not solely constitutional. Policymakers and legal experts who represent tribal leadership make this case. ICWA serves the best interests of tribal families and children, as demonstrated by the expertise provided in these briefs. These briefs, authored by organizations and individuals, both Native and non-Native, range from legal perspectives affirming the constitutionality of ICWA to perspectives from those whose lives, particularly families and children, are most impacted by the child welfare system and child development.
Research demonstrates that when children are connected to their culture and identity, it leads to higher academic achievement and self-esteem, as well as positive outcomes. Best practice, according to experts in child welfare, is to place Native children with their extended families or communities whenever possible, ensuring careful consideration of their unique needs. Adoption is one of the most influential events that can shape a child’s entire future. Those who have signed briefs in support of Native children are standing with them.
Those who seek to dismantle ICWA, opposing the side, have minimal contact with Native peoples, tribal leaders, Native organizations, Nations, or Tribes. They are motivated by their self-interests and want to grow their control over Native futures, Native industry, and Native land. They do not support the independent welfare of Native children or an independent Native organization or tribal nation. However, they say that they want the best for Native children.
On Wednesday, November 9, the Supreme Court listened to verbal dispute in Haaland v. Brackeen.
The case page of the Tribal Supreme Court Project provides audio recordings and a written record of the oral argument.
On Thursday, June 15, 2023, the Supreme Court issued their verdict in Haaland v. Brackeen.
Learn more about NARF’s efforts to safeguard the well-being of Indian youth and the Protect ICWA Initiative.
