The Supreme Court of the US has been “struggling” with a case dealing with the rights of sovereignty of Native tribes. They are hearing arguments challenging the Indian Child Welfare Act which is known as “ICWA.” The ICWA was enacted over 40 years ago when a congressional investigation found that public and private agencies had removed a third of all Native children from their homes and placed these children in institutions or homes with no ties to American Indian tribes.
ICWA established federal standards for the removal of Native children from their homes. The ICWA required state courts to notify any tribes when a child is removed from their family. It also had the requirement of preference to be given to the child’s extended family in the case of being removed from their family. This was at a time where Native children were also forced to go to boarding schools, where they were abused, their culture exterminated, and in the most horrifying cases, killed.
The case in the Supreme Court right now is Brackeen vs. Haaland or Texas vs. Haaland. This case is asking the Supreme Court to declare parts of the law unconstitutional, where non-Native people are seeking to adopt Native children who have been removed from their homes. Natives are protesting the hearing of this case. John R. Romero Jr. writes on Native News Online, “For 44 years, the Indian Child Welfare Act has been considered the gold standard in child welfare policy. But, importantly, ICWA has been the law of the land to protect and preserve the continued existence of Indian tribes and their most vital resource – Indian children.”
Defending ICWA are four federally recognized tribes – the Cherokee Nation, Oneida Nationa, Quinault Indian Nation, and the Morongo Band of Mission Indians. To defend ICWA is to defend Native rights to exist.
The issue with transracial adoption
The private adoption industry is leading this “coordinated strategy” to strike ICWA down. Right-wing organizations such as the Cato Institute, anti-Indigenous hate groups, and corporate law firms are part of the effort. The effort is to override the sovereignty of Native nations and tribes. The Nation reports that the lawsuit could reframe tribal membership as a racial category rather than a political category. The status of being Native or American Indian is based on membership in an Indian tribe. Chrissi Ross Nimmo, the deputy attorney general of the Cherokee Nation, says, “That is a political classification, not a racial classification.”
“If the Supreme Court rules that ICWA is unconstitutional because the Librettis and their coplaintiffs were discriminated against based on race, it could reverse centuries of US law and precedent protecting the rights and sovereignty of Indigenous nations.”
Nimmo explains that broader laws such as reservation status, land use, water rights, gaming are all at stake if the court finds the ICWA unconstitutional.
Even with the ICWA in place, Native children are still removed from their homes by state social workers at disproportionate rates to their population. The entire case is insidious – white families supported by conservative, right-wing organizations wish to overthrow the law in order to adopt non-white Native babies, children. These attempts are nothing short of a continuation of the genocide of Indigenous people.
So far, several states have enacted ICWA into state law, including Nebraska, New Mexico, Oklahoma, Iowa, Michigan, California, Wisconsin, Minnesota, and Washington. To protect ICWA, you can reach out to your local and state senators and urge them to codify ICWA before it is too late. With an overwhelmingly conservative Supreme Court, it is more than possible that ICWA will be deemed unconstitutional. Again, this will lay the ground to further challenge the sovereignty of indigenous nations.