Protecting the Indian Child Welfare Act at the Supreme Court
On November 9th, the U.S. Supreme Court will hear oral arguments in Brackeen v. Haaland, a case challenging the constitutionality of the Indian Child Welfare Act (ICWA). ICWA, which has been federal law for over 40 years, sets requirements for child welfare proceedings involving Native children and outlines procedures that prioritize placement of removed children within their extended family and tribal community.
Lawyers For Children, and 30 other children’s rights organizations signed onto an amicus brief in support of the law and the protections it grants Native American children and their tribal communities. ICWA has been hailed as the “gold standard” of child welfare best practices, as it protects the rights of Native children and their tribes from historically punitive government intervention toward Native American families. The law provides judges with clear guidelines on how to make individualized determinations that support a child’s best interest.
When ICWA was passed in 1978, a study found states were removing an alarming number of Native children from their families-- up to 25 and 35 percent of all Native children. At that time, 85% of the children who were removed were placed outside of their family and tribal community.
ICWA sets forth placement preferences that promote the right to family integrity and the stability and security of Indian Tribes and families. As explained in our brief, these preferences are important because “Prioritizing placement with extended family and other caregivers identified by the Indian child’s tribe maintains a network of familiar
relationships, maximizing continuity and protecting children facing the trauma of family separation.”
The brief also argues that parents have a constitutional right to raise their children according to their own values and customs. “This right protects children by ensuring their care and connection with their communities. It also provides an important protection for families to impart traditions and values free from state intrusion.”
Upholding ICWA is critical in protecting the rights of Native American children, and to preserve children’s connections and cultural identity, while protecting families from undue state intervention. A decision is expected in June 2023.