Supreme Court examines the Indian Child Welfare Act during Native American Heritage Month

Earlier this month, the Supreme Court examined a law meant to protect Indigenous families. The law encourages courts to place children with extended families and communities, placing priority of Indigenous families to adopt Indigenous children. 

A three hour long oral argument was held for the Indian Child Welfare Act (ICWA) Nov 9. The pending case is called Brackeen v. Haaland. A final decision is expected in the Spring.

Plaintiffs seek to declare the act unconstitutional. The act was first declared unconstitutional in a 2018 decision by U.S. District Court Judge Reed O’Connor of Texas, a decision which has received much criticism. He stated the act was unconstitutional and race-based. A federal judge has never before taken this stance. 

When the ICWA was first passed, more than 30 percent of Indigenous children were being removed from their homes and placed with non-Indigenous families. This process, rather than being in the best interest of the child, was related to cultural assimilation efforts that aimed to remove children from their home culture.  

The ICWA typically gives full jurisdiction over Indigenous child custody cases to the tribe in question in the case of children who either live on reservations or are wards of tribal courts.

For children who live outside of reservations, the IWCA splits jurisdiction between the tribe and state court. 

This lawsuit is brought forward by the state of Texas and several individual plaintiffs, including a white, adoptive couple who tried to adopt an Indigenous child after fostering her.

The ICWA of 1978 was intended “to protect the best interest of Indian Children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children and placement of such children in homes which will reflect the unique values of Indian culture,” according to the law. 

The U.S. Department of the Interior states that the law “provides guidance to States regarding the handling of child abuse and neglect and adoption cases involving Native children and sets minimum standards for the handling of these cases.”

The law firm that is representing the case against ICWA pro bono is called Gibson Dunn. This firm also represents Energy Transfer and Embridge, companies responsible for the Dakota Access and Line 3 pipelines. 

On Nov 21, 2016, law enforcement used tear gas and used a high pressure water cannon to spray protesters of the Dakota pipeline as temperatures dropped below freezing. 

Almost two weeks later, the Army Corps stopped construction temporarily. 

In January 2017, President Trump signed an executive memorandum expediting the approval process for the rest of the unbuilt pipeline, restarting construction.

Both the Cheyenne River Sioux and The Standing Rock Sioux tribes got their water supplies downstream of the Lake Oahe crossing, so were concerned about the environmental impact of a pipeline that crossed right under the Missouri river at the lake.

The Army Corps released a statement Feb 7, 2017 ending the period for public comment and rescinding their statement that there would be an environmental impact assessment. They formally terminated the assessment ten days later.

Summary judgments citing tribal land rights were brought against the pipeline, and they are still outstanding. 

The pipeline leaked five times in its first six months of operation.

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