This fall, the Supreme Court will take up Brackeen v. Haaland, a case in which the law being challenged is the Indian Child Welfare Act, also known as ICWA, which sets federal requirements that apply to state child custody proceedings involving an American Indian or Alaska Native child.
The law emphasizes placement with extended families and tribal communities whenever possible to ensure children have a continued connection to their culture. Child welfare leaders and organizations agree that ICWA is the “gold standard” of child welfare policy.
Since ICWA’s passage, its central tenet of keeping children with relatives whenever possible has become a best practice that is increasingly codified into state and federal law. For example, Title IV-B of the Social Security Act provides funding to support states in efforts to reunify children with their families as soon as possible and the Family First Prevention Services Act (FFPSA), is built upon the principle of helping families whose children are at risk of removal stay together safely. Furthermore, the Child Abuse Prevention and Treatment Act (CAPTA), which predates all of these, including ICWA, was predicated on the need to strengthen families to prevent child abuse and neglect, provide support for needed services to prevent the unnecessary removal of children from families, and promote the reunification of families where appropriate.
That’s because in the field of child welfare, it is a well-known fact that children do better when they can remain with their birth families. Research has consistently proven that children are most likely to thrive in family settings, and in their own homes if possible.
Given the importance of family settings and kinship care, lawmakers have codified these family placement preferences in federal legislation requiring that states “consider giving preference to an adult relative over a nonrelated caregiver when determining a placement for a child.”
Opponents of ICWA — including Texas Attorney General Ken Paxton, the Goldwater Institute, and others — challenge the law under the guise of “protecting children.” They say that Native children should be able to be placed with non-Native families instead of involving their tribes to place them with their extended family or communities when possible. Let’s be clear: ICWA opponents have minimal contact with Native tribes, organizations, leaders, or peoples. What opponents really want is to overturn tribal sovereignty for their own gain.
It’s important to take a step back and understand why ICWA exists. The law was passed by Congress in 1978 in response to the high rate of removal of Native children from their families. Research from the late 1960s found that federal programs and policies resulted in between 25 and 35% of all Native children being removed from their families and placed in adoptive homes, foster homes, or institutions. An estimated 90% were placed with non-Native families.
Since early interactions between European colonizers and Native peoples, Native children have been targeted for forcible or coerced removal from their families and tribal nations. Federal programs sought to systematically assimilate Native people, and efforts to “civilize” the Native population were almost always focused on children. The 1950-era federal program known as the Indian Adoption Project (IAP) is one example. The IAP worked in collaboration with child welfare agencies and churches to remove Native children living on tribal lands in the Western U.S. and place them with non-Native families in the East.
It’s no accident that the forced assimilation of Native peoples has always involved children. The text of ICWA itself explicitly acknowledges that children are “vital to the continued existence and integrity of Indian tribes … and that the United States has a direct interest … in protecting Indian children.” This fundamental policy has been an essential lifeline to Native children, protecting their sense of identity, familial networks, and sense of belonging — things that all children need to thrive. Put plainly, ICWA sought to end the unnecessary family separation and required that their tribal nations be involved in important decisions that could impact children’s lives forever.
Family separation is not just a piece of history. ICWA is critically important today. Right now, Native children are removed from their homes at 2 to 3 times the rate of white children and often are not placed with relatives or other Native families, even when placements are available and appropriate. Despite ICWA requirements, one national study found that only 17% of Native children not living with a biological parent reside with a Native caregiver.
ICWA is a vital federal law that protects the well-being and interests of Native children by keeping them connected to their families, their tribes, and their culture. The law not only protects the best interests of Native children, but also aligns and indeed with child welfare best practice. The outcome of the Brackeen case will have far-reaching impacts not just for the welfare of Native children and their families, but for the sovereign status of tribal nations that has been recognized for centuries.
We urge the Supreme Court to uphold ICWA and the protections it offers for Native families.