The Supreme Court of the United States ruled 7-2 to uphold the Indian Child Welfare Act this past week.
The act was brought to court by the Halaand v. Brackeen case, which began in 2018 in Texas. The Brackeens, a non-Indigenous couple, appealed a court’s decision to have their Indigenous foster child adopted by an Indigenous family out of state.
The Brackeens had been fostering the Navajo and Cherokee child for some time when they decided to adopt him. The Texan judge ruled that due to the stipulations of the ICWA, which states that a child should be placed with an Indigenous family before a non-Indigenous one, the child was to be adopted by a Navajo family in New Mexico.
The Brackeens won their case in Texas, with the New Mexico family pulling out, but they felt it had been “on a technicality,” and so they sued the state. Their case picked up steam, collecting support along the way. The main argument of supporters is that the Act operates on race-based discrimination and separates families.
Ultimately, the Supreme Court ruled to uphold the ICWA in its entirety, on the basis that it is not a race-based law, due to the sovereign nature of tribal nations. Tribal nations thus have a political relationship to the federal government, not a racial one.
Established in 1978, the ICWA was created in response to the incredibly high number of Native American children being removed from their families and communities by both private and public welfare agencies. A 1978 investigation by Congress found that from the 1950s -70s, over one-third of Indigenous children in the United States had been removed using various degrees of force from their families to be rehomed in non-Indigenous households and institutions.
At its simplest, the Act is a “federal statute that aims to keep Indian children connected to Indian families.” It establishes a hierarchy of preferences for who adopts Native children, with Indigenous families/institutions from any tribal nation being preferred over “unrelated non-Indians or non-Indian institutions.” Moreover, the child’s tribe can intervene at any stage to change the course of the proceedings as well as collaterally attack the court’s decision.
Any actor attempting to remove a child from an Indigenous family must satisfy the court with proof that “active efforts” involving remedial and rehabilitative measures have occurred to prevent the break up of a said family. On top of this, they must showcase that the child is “likely” to experience “serious emotional or physical damage” if they are not removed from the custodian.
It is important to note that the ICWA does not ban non-Indigenous families from adopting Indigenous children. The Act simply allows tribal governments to exercise their sovereign power to oversee where their children are placed.
There are many cases of white families adopting Native children, such as the Brackeens. Manilan Houle, for example, a member of the Fond du Lac Band of Lake Superior Chippewa, was adopted by a non-Indigenous family in Minnesota. His tribe oversaw each step of his adoption and his time in foster care. He credits the ICWA for him, “being able to find that forever family of people who supported [him], even though they weren’t Native.” As an ICWA success case, he believes that the Act “gives tribes and tribal governments the ability to wrap their arms around the children who need their communities the most.”
Success stories such as Houle’s are plenty, but they are entirely outweighed by tales of hurt. The damage done to Indigenous families in the past cannot be overstated. In the words of Sarah Kastelic, executive director of the National Indian Child Welfare Association, there is a “gaping hole” where lost relatives should be. This ongoing trauma is why the ICWA is such an essential Act. Whilst one Act is not the magic answer to reconciliation, the ICWA is most certainly a crucial piece.
For more stories on the many people the ICWA has helped, see here.
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