WASHINGTON — Tribal advocates are becoming increasingly worried that the U.S. Supreme Court could strike down all or parts of the Indian Child Welfare Act (ICWA) after it hears Haaland v. Brackeen this fall.

In short, Brackeen is a lawsuit brought by Texas and several individual plaintiffs, who all allege that ICWA, passed by the U.S. Congress in 1978, is unconstitutional for several reasons, including alleged equal protection violations.

If the law, which calls for Native kids in the adoption and foster care systems to be placed with Native families and tribes, is struck down, tribal advocates argue that irreparable harm will be caused to such children, families, and tribes — for cultural, social, political, jurisdictional, and sovereignty-based reasons.

The Native American Rights Fund (NARF) details the case from its perspective here.

Texas and individuals who oppose ICWA argue in part that it may not always be in the best interests for Native children to be placed with Native families and tribes, and that it violates the U.S. Constitution through its pro-tribal requirements.

Elizabeth Brando, development director with the National Indian Child Welfare Association, says that as of last Friday 43 tribes and 7 organizations have signed on to a tribal amicus brief that makes the tribal case that ICWA is constitutional.

“We are trying to get to 500+ tribes signed on by next Tuesday’s August 9th deadline,” Brando tells Indigenous Wire via email.

Brando notes that in the lower court cases proceeding the high court’s February decision to take up the case, 486 tribal nations, 59 Native organizations, 31 child welfare organizations, 27 states including D.C., and 77 members of Congress offered support for ICWA.

Erin Dougherty Lynch, a senior lawyer with NARF, has told tribal leaders that the brief is open for signature by all federally recognized tribes, except for the five tribes that are parties in the case, as well as to tribal organizations and tribal consortia, and Native non-profit organizations that have a describable interest in Indian child welfare. 

“As in earlier stages of this case, the Tribal Amicus Brief will ensure that the Court hears a united message from Tribes in support of this vitally important law,” Dougherty Lynch wrote in a recent email to tribal leaders.

“In order to ensure that the Tribal Amicus Brief is finalized and printed in time for delivery to the Supreme Court, the deadline for signing on to the brief will be Tuesday, August 9,” Dougherty Lynch added. “As with past briefs in this case, there will be no cost to sign on to the brief.” 

Dougherty Lynch said tribes or tribal organizations interested in signing on should send NARF an email from an individual (chairperson, executive director, general counsel, outside counsel, etc.) or body (tribal council, board of directors, etc.) authorized to speak on behalf of the tribe, asking to be added as a signatory on the brief, and the tribe’s name as it should be listed on the brief. 

Her email address is dougherty@narf.org.

“The Native American Rights Fund and our co-counsel at Dentons LLP remain committed to defending ICWA and the children and families that the law protects,” Dougherty Lynch added.

The 40-page draft amicus brief reads, in part:

Congress enacted ICWA in response to a nationwide crisis: the wholesale removal of Indian children from their families by state and private child welfare agencies — often without due process — at rates far higher than those of non-Indian families. In response, Congress established minimum federal standards for state child welfare proceedings involving Indian children. Congress carefully crafted ICWA to protect the legal rights of Indian children and parents, and to incorporate important jurisdictional and political interests of Tribes in decisions concerning the welfare and placement of their children. Amici agree with Petitioners Secretary Deb Haaland et al. (“Federal Petitioners”) and the Cherokee Nation et al. (“Tribal 8 Petitioners”) that ICWA is constitutional in its entirety and that the Fifth Circuit Court of Appeals erred to the extent it held otherwise. In contrast, the interpretations advanced by the Brackeens (“Individual Plaintiffs”) and the State of Texas find no support in centuries of established federal Indian law, have never been adopted by any other court, make no practical sense, and are directly contrary to ICWA’s policy and purpose.

Further:

ICWA remains one of the most important pieces of federal Indian legislation ever enacted. It has provided immense and lasting benefit to amici Tribes and tribal organizations and their collective goals in furthering tribal sovereignty and the best interests of Indian children. The Court should uphold ICWA as an appropriate exercise of Congress’s Indian affairs power.

Oral arguments are expected sometime during or after November.