Supreme Court Upholds Native American Rights in Child Welfare Decision

 

By Jessie Palatucci; reprinted with permission; first printed for FCNL email newsletter, June 16, 2023

 

In a significant victory for Native American rights, the Supreme Court upheld the constitutionality of the Indian Child Welfare Act (Public Law Number: 95-608) this week. (Editor's Note:  of June 16, 2023)

ICWA was established in 1978 to remedy decades of government abuse that resulted in the removal of hundreds of thousands of Native children from their homes and communities.

The practice started in the 19th century when Christian churches collaborated with the government to create hundreds of boarding schools for Native American children. It continued into the 1970s with forcible legal separations and the placement of adopted children into non-Native families. In solidarity with Indigenous advocates, FCNL worked closely with Congress to enact ICWA.

To ensure that Native children would never again be forcibly removed from their communities, ICWA established a tiered system for determining where Native children should be placed when they are adopted or enter foster care. The first preference is that they be placed with an extended family member. The second is placement with someone within the child’s tribe. If neither of those options is available, the third preference is placement with members of another tribe.

The law is considered the gold standard of child welfare practice. Still, it faced a series of recent legal challenges, which resulted in four cases—consolidated as Haaland v. Brackeen—coming before the highest court in the land.

Ultimately the Supreme Court upheld ICWA. This is a win for tribes and a reminder of the need to persistently work toward truth, accountability, and healing around our nation’s shameful historical treatment of Native children—in the courts, the administration, and the halls of Congress.

Professor Angelique EagleWoman (Sisseton Wahpeton Oyate (Dakota)), underscored the importance of continuing our public policy advocacy as a tool for advancing justice, noting that Justice Neil Gorsuch relied heavily on Interior Secretary Deb Haaland’s 2022 investigation into boarding schools to give historical context to his concurring opinion.

“We have a full circle moment here. We have cultural affirmation, we have true justice,” EagleWoman said. “So, there's a lot of good here.”

 

Jessi Palatucci is Director of Digital Communications at Friends Committee for National Legislation (FCNL.)