ICWA lawsuit primer: What it’s about, what’s at stake, who’s involved, and why we should care

The U.S. Supreme Court will hear a case this year trying to end the Indian Child Welfare Act (ICWA), a federal law that provides states guidance on how to handle “child abuse and neglect and adoption cases involving Native children,” with the goal to keep Native children in Native homes.

The case, Haaland v. Brackeen, has huge implications for Native children and families. Less well known is how corporate interests appear to be weighing in, trying to undermine Tribal sovereignty to increase their profits.

What is ICWA?

This country has a long history of removing Native children from their homes and separating them from their families, communities, cultures, and traditions, a form of cultural genocide. That history includes sending Indian children to boarding schools or having non-Native families adopt them.

Congress passed ICWA in 1978 because “large numbers of Native children were being separated from their parents, extended families, and communities by state child welfare and private adoption agencies,” according to the National Indian Children Welfare Association. Research “found that 25%–35% of all Native children were being removed; of these, 85% were placed outside of their families and communities—even when fit and willing relatives were available.”

ICWA directs states to work with an Indian child’s family and Tribe when making an out-of-home placement. The law gives placement preferences to extended family, Tribal members, or other Native families who would better understand the child’s culture.

Case in a nutshell

“The case revolves around the Brackeens, a white evangelical couple in Texas who wanted to adopt a Cherokee and Navajo boy they had fostered,” The New Republic reported. “The Navajo Nation intervened in the adoption case and identified a Navajo family that would take him in instead.”

The Brackeens filed a lawsuit challenging ICWA. Judge Reed O’Connor of Texas’ Fifth Circuit District Court heard the case and ruled ICWA was unconstitutional. (O’Connor is “the go-to judge for conservatives,” the AP reported. He’s also the judge who ruled against the Affordable Care Act.)

O’Connor’s ruling was appealed. In April, the Fifth Circuit Court of Appeals, “handed down an extraordinarily fractured 325-page ruling, in which none of the judges’ individual opinions commanded a majority,” The New Republic reported.

The case now has reached the U.S. Supreme Court, merged with two similar cases.

The arguments

ICWA opponents argue the law:

  • Racially discriminates against non-Indian families and violates the Constitution’s Equal Protection Clause.
  • Limits the potential placements available to Native children, as non-Indigenous are “ready and willing” to care for them.
  • Imposes federal law in child welfare cases that fall under the states’ jurisdiction. (A states rights argument.)

Native children have become pawns in a colonial chess game

Lakota Peoples’ law project

ICWA proponents argue the law:

  • Isn’t based on race but political identity because Indian people belong to various Native Nations.
  • Has been meeting ICWA’s goals, to: “protect the best interests of Indian children and to promote the stability and security of Indian tribes and families.”
  • Doesn’t infringe on states rights. Federal law has always governed the relationship between Native Nations and the United States.

What’s at stake?

In addition to potentially severe impacts on Indian children and families involved in child welfare cases, Brackeen v. Haaland challenges Native Nations’ rights, resources, and sovereignty.

(A ruling against the Tribes would mean the courts no longer recognize Indian children and Tribes as having separate legal status and political identity.)

According to a story headlined: Big money is behind the fight over the Indian Child Welfare Act:

[The ICWA case] has drawn the attention of groups who see the chance to undo ICWA as the first step into doing away with a whole chain of legislation around Native sovereignty, with huge implications for land use, water rights and gaming rights. In short, a successful legal challenge to this one law, which has now reached the steps of the Supreme Court, could mean a lot of money for a whole lot of non-Native people.

NPR Marketplace

According to the Lakota Peoples Law Project (LPLP): “Native children have become pawns in a colonial chess game.” Behind “states’ rights” arguments, “attorneys close to Big Oil and other industries have set up ICWA to be the first domino to fall in a series that could destroy tribal sovereignty and end in a land grab by the fossil fuel industry to continue extractive destruction.”

Who’s involved?

Key players include:

Appellees: Three non-Indigenous families seeking to adopt or foster Native American children — Chad and Jennifer Brackeen, Danielle and Jason Clifford, and Frank and Lynn Libertti; Altagracia Socorro Hernandez, whose Native American child was adopted by the Librettis; and the states of Texas, Indiana and Louisiana.

Respondents: The Cherokee Nation, Oneida Nation, Quinault Nations, and the Morongo Band of Mission Indians; and the U.S. Department of the Interior; the Bureau of Indian Affairs; the U.S. Department of the Interior; and the U.S. Department of Health and Human, and their departmental leaders.

Gibson Dunn: A “high-powered law firm” providing pro bono legal help to reverse ICWA, LPLP reported. Gibson Dunn “counts oil companies Energy Transfer and Enbridge … among its clients.”

Paul Clement: Another attorney opposed to ICWA who is working pro bono on the case. He “regularly attacks existing Indian law in the highest courts,” LPLP reported. “Clement helped to disestablish the Mashpee Tribe’s reservation in 2020.” (The Tribe was “‘collateral damage’ in a bid to open a private Casino.” The Tribe sued, and the federal government eventually dropped the case, leaving the Mashpee Tribal status intact.)

The Goldwater Institute: An organization founded on principles of limited government and private property rights is leading the charge against ICWA, according to a 2019 article by The Intercept. The institute is has been involved in 13 cases challenging ICWA, according to its website.

The libertarian Cato Institute and the Project on Fair Representation (PFR) filed briefs during litigation. PFR was “founded by the strategist responsible for two major Supreme Court cases challenging affirmative action and the Voting Rights Act,” The Intercept reported.

Amicus (Friend of the Court) briefs:

Twenty-one organizations and individuals have filed amicus briefs supporting ICWA, reflecting the importance of this case and the breadth and depth of ICWA’s support. Quoting the Turtle Talk blog, those filing amicus briefs include:

Why should we care

1. Those of us who are not Indigenous have a legal and moral obligation to honor treaties and the “trust relationship” the United States has with Native Nations.

The purpose behind the trust doctrine is and always has been to ensure the survival and welfare of Indian tribes and people. This includes an obligation to provide those services required to protect and enhance tribal lands, resources, and self-government, and also includes those economic and social programs which are necessary to raise the standard of living and social well-being of the Indian people to a level comparable to the non-Indian society.”

U.S. Department of Human Service

Keeping Indian children with extended families and Tribes helps ensure “the survival and welfare of Indian tribes and people” and their “social well-being.”

2. Native Nations support it and the United States should respect their autonomy: The law isn’t controversial in Indian Country. Nearly 500 tribes and more than 60 Tribal organizations support ICWA, a law that’s been in place for 42 years. Those challenging the law are making the old colonial and patronizing argument that “We know what’s best for you and your children.”

3. We need to protect the environment. Native Nations have been leaders in efforts to stop fossil fuel projects and the climate damage they create. As sovereign nations, they are in a unique legal position to oppose projects that threaten clean land, air, and water. Losing Brackeen v. Haaland in court would erode their ability to continue this work.

4. Maintaining ICWA would push back against the white supremacy that has, and continues, to infect this nation. Overturning ICWA would prioritize the needs of white families who want to adopt over the expressed needs of Native Nations. As Bloomberg law columnist Vivia Chen writes, those trying to reverse ICWA are asserting “that White parents are victims of a law that addresses racism and genocide against Native Americans.” She cites Nick Estes, a Lower Brule Sioux Tribe citizen, “who writes that the terms ‘reverse racism’ and ‘state’s rights’ are ‘codewords frequently associated with dismantling anti-racist policies.’”

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