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Work goes on as court decides ICWA’s fate

ICWA supporters gather outside the U.S. Supreme Court on Nov. 9. (Courtesy NICWA)

Supporters of the Indian Child Welfare Act (ICWA) will have to wait months for the U.S. Supreme Court’s decision on recent challenges to the 1978 law. It heard more than three hours of oral arguments Nov. 9.

An aggregate of cases – now known as Brackeen v. Haaland – took years to reach America’s highest court as lower courts first grappled with challenges to ICWA’s constitutionality and other provisions. The Supreme Court is expected to render its decision next June.

Three states – Texas, Louisiana and Indiana – and seven people sued the federal government to challenge the law. Citing the equal-protection clause of the Fourteenth Amendment, the plaintiffs claim that ICWA violates their constitutional rights to adopt or foster Native children because it is “race based.” The plaintiffs also argue that the U.S. Congress doesn’t have the power to enact it. ICWA supporters say the challenges aren’t about caring for the welfare of Native American children, but are part of a long-term goal to undermine tribal sovereignty.

ICWA states that Native American children should be placed with a member of their extended family, if possible. Otherwise, they should be placed with another member of their tribe. If neither scenario is possible, they should be placed with “other Indian families.”

Court watchers say part of what makes the case complex is that many identify Native Americans as a racial group. Under federal law, however, tribes and tribal citizens are a political group. Therefore, ICWA applies to Native children who are either enrolled in a federally recognized tribe or are eligible based on a tribe’s citizenship requirements.

Sarah Kastelic (Alutiiq), the National Indian Child Welfare Association’s (NICWA) executive director, joined supporters from across Indian Country near the steps of the Supreme Court in Washington, D.C., on Nov. 9 to show public support of ICWA. She said the gathering was a peaceful experience and further proof of how important ICWA is to tribes and in upholding tribal sovereignty.

Indeed, many stakeholders across Indian Country believe a dismantling of ICWA would be a bellwether for threats to land rights, water rights, health care, gaming, criminal and civil jurisdiction, and tribal self-governance.

Kastelic said that while she’s not in the business of predictions, judging by the justices’ questioning during oral arguments, there is at least a fair prospect that it could strike down part of the law.

In the meantime

But Kastelic said that while supporters anxiously wait for the court’s decision, it’s not a time to be idle.

“There are many important things that we can be working on now – things that need our good thoughts and energy,” she said.

Kastelic said NICWA and its supporters can continue to advocate for better services and support for tribal families, and work with tribal leaders and tribal child welfare departments to exercise good governance over culturally based programs and services.

“We can direct resources to our tribal programs that help keep our children out of the state and county child welfare system – systems that are characterized by perpetuating the trauma children and families have experienced,” she said.

Kastelic said it’s also important for tribes to strengthen working relationships with state child welfare agencies, state courts and state legislatures.

“State ICWA laws can be an important tool to codify protections for Native children and families,” she said.

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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