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ICWA supporters continue to work, wait

ICWA is now facing a possible U.S. Supreme Court review and ruling. (Courtesy image)

November marked 43 years since the Indian Child Welfare Act (ICWA) became federal law, and a best practice for child adoption cases across Indian Country. But the law has been challenged in recent years like never before, even as it has been upheld in dozens of court decisions. Legal pressures have increased – particularly due to the Brackeen v. Haaland case challenging its constitutionality – and it is now facing a possible U.S. Supreme Court review and ruling.

Before ICWA became law in 1978, Native American children were often taken from their parents, extended families and communities at alarming rates. The National Indian Child Welfare Association (NICWA) estimates that 25% to 35% of all Native children were removed from their homes and placed in foster care. Once removed, 85% were placed in non-Native homes. Advocates argue that Native Americans and tribal governments should determine the best interests of Indian children by keeping them connected to their family, community and culture whenever possible.

NICWA and its supporters have been working to ensure the law remains intact. In October, three amicus briefs were filed to the Supreme Court, who was petitioned in September by multiple parties (including those for and against ICWA) to rule on the law after a sharply divided and complex decision by the Fifth Circuit Court of Appeals in April. Amicus briefs allow entities that have a stake in litigation to provide information to the court on particular issues they believe are important to the case.

The amicus briefs were signed by 180 tribal nations, 35 Native organizations, 25 states and the District of Columbia and 10 child welfare and adoption organizations, among other supporters. The federal government – specifically the Interior Department – and tribal defendants, including the Quinault Nation, Morongo Band of Mission Indians, Oneida Nation of Wisconsin and Cherokee Nation, asked the Supreme Court to determine whether the plaintiffs in the Brackeen v. Haaland case had standing to challenge the law’s placement preferences.

NICWA’s executive director, Sarah Kastelic (Alutiiq), thinks the ultimate goal of those opposed to ICWA – which include the state of Texas and the private parties in the case (non-Native foster parents who want to adopt Native children) – is to dismantle ICWA, not to, for example, strengthen it.

Early speculation was that the Supreme Court would render a decision about whether it would take the case under review by the end of October, which didn’t happen. But while Kastelic and others think it’s likely the Supreme Court will eventually take the case, the timeline has been extended. Kastelic said all of the parties requested and were granted an extension until Dec. 8 to respond to cert petitions – a request that the Supreme Court order the Fifth Circuit to send up the record of the case for review.

“As a practical matter, this will mean that the earliest the Supreme Court would consider the case would be January,” Kastelic said. “While at first blush this is only a month of delay, it could have a ripple effect on when the Court chooses to hear the case.”

Kastelic said the potential ripple effect is because the Supreme Court’s oral argument schedule typically runs through April, in order to give it enough time to finish its term by late June or early July.

“Even if the Supreme Court were to take up the case [in January], a merits briefing would take several months, leaving little room on the calendar for oral argument this term,” she said. “Given this, it is theoretically possible that the Supreme Court would bump the case to the next term, which begins in October 2022.”

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Damon Scott
Damon is a multimedia journalist for the Seminole Tribune. He has previously been an editor and reporter for digital and print media in Florida and his home state of New Mexico. Send him an email at