The Continuing Attack Against Indian Children and Families
The Association will continue to defend ICWA in the courts, and through education of state governments and the public.
#ProtectICWA
The Protect ICWA Campaign was established by the National Indian Child Welfare Association, the National Congress of American Indians, the Association on American Indian Affairs, and the Native American Rights Fund. Together, we work to serve and support Native children, youth, and families through upholding ICWA. The Campaign works to inform policy, legal, and communications strategies with the mission to uphold and protect ICWA - against the Goldwater Institute and others that seek to overturn ICWA and keeping Indian children and families together.
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Why You Should Sign The Protect ICWA Petition
The forced assimilation of Native peoples in the U.S. has always targeted children. That's why over 40 years ago, the Indian Child Welfare Act was put into place. Its number one goal? To curb the generations of harm caused by Native children being separated from their families and tribal communities. Unfortunately, ICWA is not a mainstream issue. Outside of Native Peoples, child welfare experts, and some policymakers, ICWA is unknown or misunderstood. What many people may not understand is that Native children being separated from their families is a modern issues, impacting far too many Native children to this day. And come November 9, the law working to protect these children from being forcibly removed from their homes and families will be challenged in front of the Supreme Court of the United States. Our opponents in Haaland v. Brackeen—Texas Attorney General Ken Paxton, The Goldwater Institute, and private interests—are ultimately motivated by profit and are not afraid to harm kids in order to accomplish their goals. Their efforts, both within and outside of this case, put an enormous toll on state and federal budgets, and cause harm to the rural areas that often rely on the strength of Tribal Nations' economic development, advocacy for the environment, job creation, and education, amongst other things. |
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Brackeen v. Haaland
In August 2019, the Fifth Circuit Court of Appeals delivered a resounding victory for Tribes, Native children, and families by striking down a Texas federal court decision that declared the Indian Child Welfare Act unconstitutional. In Brackeen v. Bernhardt, individual non-Indian plaintiffs and the States of Texas, Louisiana, and Indiana argued against ICWA, claiming that protections for Indian children and families constitute illegal racial discrimination, and that ICWA’s federally-mandated state court standards illegally “commandeer” state courts and state agencies to carry out a federal scheme. The Fifth Circuit rejected the state and individual plaintiffs’ arguments on all fronts, finding ICWA to be an appropriate exercise of the federal government’s political government-to-government relationship with Tribes and Native peoples, and that ICWA did not unconstitutionally interfere with state child welfare systems.
The victory for ICWA in the Brackeen case has been an important recognition of the interpretation of federal Indian law that Congress has constitutional authority to develop legislation to protect Indian Country. The Association, joined by 56 other Tribal organizations, 325 Indian Nations, 21 state attorneys general, 20 law schools, and 30 child welfare organizations, filed an amicus curiae (“friend of the court”) brief to the Fifth Circuit (twenty-one states also filed an amicus brief supporting ICWA), providing important context into the horrific and well-documented abuses that led to the passage of the ICWA. The Association was heavily involved in documenting those abuses since the late 1960s – collecting data, giving congressional testimony and drafting the legislation based on its efforts in state courts to return Indian children to their families.
Unfortunately, the attack against ICWA in the courts is not over and we must still fight against interests that seek to dismantle ICWA’s protections for Indian families. On November 7, 2019 the Fifth Circuit Court of Appeals ordered the case to be reheard en banc (meaning that it will be heard before all the judges in the Fifth Circuit) and with oral argument. Oral argument is scheduled on January 22, 2020 (read January 21 and January 22 press releases) and a final decision is expected in the months after. Given the strength of the Fifth Circuit’s original decision, Tribes do have an advantage. The #ProtectICWA Campaign - led by the Association, Native American Rights Fund, National Congress of American Indians and National Indian Child Welfare Association - filed its amicus brief along with 486 federally recognized American Indian and Alaska Native Tribes and 55 other Native organizations to the Fifth U.S. Circuit Court of Appeals defending the constitutionality of the Indian Child Welfare Act as part of the Court’s en banc proceedings. Read the press release here.
Though we celebrate how 41 years of ICWA has strengthened Indian children and families, this litigation seeking to weaken ICWA seems non-stop. The stories of adoptions to non-Indian families being delayed or interrupted can often tear at the heart strings of the public. The information not included in those stories is that it is often the state courts’ and state agencies’ mistakes in implementing ICWA that have caused these delays in the first place. ICWA does not prevent adoption of an Indian child to a non-Indian family. Instead, ICWA provides procedures for identifying an Indian child early on and involving the child’s Tribal Nation in the process to ensure that everything has been done to keep the Indian family whole, and cultural connections intact. Studies have shown that Indian children adopted to non-Indian families fair worse psychologically than white peers. Suicide rates, depression and alcoholism are higher in American Indian adoptees than in other groups. Involving the Tribal Nation in the placement or adoption is crucial to provide culturally appropriate services to support the Indian child and family.
ICWA is the Gold Standard
ICWA’s provisions apply in state child custody proceedings when there is an Indian child involved. ICWA requires that: the state must inquire into the enrollment status of a Tribal child, provide Tribes and parents notice in child welfare proceedings, and ensure that Tribes are given the opportunity to intervene in the proceedings or transfer jurisdiction to the Tribal court. The party removing a child or terminating parental rights must provide active efforts to prevent the breakup of an Indian family and present testimony of a qualified expert witness supporting such a decision before placing an Indian child in foster care or terminating the parental rights over an Indian child. Such procedures seem reasonable for any child custody proceeding to ensure that the child is not removed from family and extended family without first trying to prevent the breakup of that family. And, these procedures are considered the “gold standard” in child welfare.
Even though the majority of child welfare organizations consider ICWA the “gold standard,” ICWA is constantly being litigated. “State courts of appeal interpret the law across the country at a rate of once every other day. There are, on average, 200 appellate cases annually.”[1] Because of the numbers, many Tribes do not have the capacity to take on these matters – especially since Tribes are often not notified by state courts properly, which increases the duration of litigation and the amount of harm on the child. Instead, many Tribes do not litigate and instead seek to support the cultural identity of the child and his or her connection with their Tribe; litigation almost always causes bitterness for the adoptive family and not healing. “In some decisions, the court’s confusion [about the Tribe’s position] is apparent and its ignorance of the Tribe’s position comes through in the opinion.”[2]
Meanwhile, nationwide (even after 41 years of ICWA), American Indian and Alaska Native children are placed into foster care at a rate 2.7 times greater than their proportion in the general population. This disproportionality is not happening because there are higher reports of abuse or neglect in American Indian communities; in fact, these numbers are consistent with other populations. The disproportionality comes as one moves further into the state child welfare system decision-making processes: the rates of removal of Indian children from their families are disproportionate compared to non-Indian families. Studies that have researched systemic bias in the child welfare system have found that Indian families were two times more likely to be investigated and four times more likely to have their children removed and placed in foster care than their white counterparts. ICWA was meant to provide protections against this systemic bias and reduce the flow of Indian children into these systems.
Read our Amicus Brief in Cherokee Nation et al. v. Brackeen et al., case no. 21-377 and Haaland et al. v. Brackeen et al., case no. 21376. This brief provided the Supreme Court with important context about the history and purpose of ICWA, and to highlight its continued vitality for Native Nations today.
On February 28, 2022 the U.S. Supreme Court agreed to hear arguments in Brackeen v. Haaland, the federal court case challenging the constitutionality of the Indian Child Welfare Act. Read our press statement here.
Casey Family Programs and 10 other child welfare organizations filed a brief in support of ICWA, which is available here. 25 States and the District of Columbia also filed a brief in support of ICWA, which is available here.
Amicus Brief on Behalf of 497 Tribes and 62 Tribal Organizations
Copies of all of the petitions and all amicus briefs can be found on the Tribal Supreme Court Project website here.
In August 2019, the Fifth Circuit Court of Appeals delivered a resounding victory for Tribes, Native children, and families by striking down a Texas federal court decision that declared the Indian Child Welfare Act unconstitutional. In Brackeen v. Bernhardt, individual non-Indian plaintiffs and the States of Texas, Louisiana, and Indiana argued against ICWA, claiming that protections for Indian children and families constitute illegal racial discrimination, and that ICWA’s federally-mandated state court standards illegally “commandeer” state courts and state agencies to carry out a federal scheme. The Fifth Circuit rejected the state and individual plaintiffs’ arguments on all fronts, finding ICWA to be an appropriate exercise of the federal government’s political government-to-government relationship with Tribes and Native peoples, and that ICWA did not unconstitutionally interfere with state child welfare systems.
The victory for ICWA in the Brackeen case has been an important recognition of the interpretation of federal Indian law that Congress has constitutional authority to develop legislation to protect Indian Country. The Association, joined by 56 other Tribal organizations, 325 Indian Nations, 21 state attorneys general, 20 law schools, and 30 child welfare organizations, filed an amicus curiae (“friend of the court”) brief to the Fifth Circuit (twenty-one states also filed an amicus brief supporting ICWA), providing important context into the horrific and well-documented abuses that led to the passage of the ICWA. The Association was heavily involved in documenting those abuses since the late 1960s – collecting data, giving congressional testimony and drafting the legislation based on its efforts in state courts to return Indian children to their families.
Unfortunately, the attack against ICWA in the courts is not over and we must still fight against interests that seek to dismantle ICWA’s protections for Indian families. On November 7, 2019 the Fifth Circuit Court of Appeals ordered the case to be reheard en banc (meaning that it will be heard before all the judges in the Fifth Circuit) and with oral argument. Oral argument is scheduled on January 22, 2020 (read January 21 and January 22 press releases) and a final decision is expected in the months after. Given the strength of the Fifth Circuit’s original decision, Tribes do have an advantage. The #ProtectICWA Campaign - led by the Association, Native American Rights Fund, National Congress of American Indians and National Indian Child Welfare Association - filed its amicus brief along with 486 federally recognized American Indian and Alaska Native Tribes and 55 other Native organizations to the Fifth U.S. Circuit Court of Appeals defending the constitutionality of the Indian Child Welfare Act as part of the Court’s en banc proceedings. Read the press release here.
Though we celebrate how 41 years of ICWA has strengthened Indian children and families, this litigation seeking to weaken ICWA seems non-stop. The stories of adoptions to non-Indian families being delayed or interrupted can often tear at the heart strings of the public. The information not included in those stories is that it is often the state courts’ and state agencies’ mistakes in implementing ICWA that have caused these delays in the first place. ICWA does not prevent adoption of an Indian child to a non-Indian family. Instead, ICWA provides procedures for identifying an Indian child early on and involving the child’s Tribal Nation in the process to ensure that everything has been done to keep the Indian family whole, and cultural connections intact. Studies have shown that Indian children adopted to non-Indian families fair worse psychologically than white peers. Suicide rates, depression and alcoholism are higher in American Indian adoptees than in other groups. Involving the Tribal Nation in the placement or adoption is crucial to provide culturally appropriate services to support the Indian child and family.
ICWA is the Gold Standard
ICWA’s provisions apply in state child custody proceedings when there is an Indian child involved. ICWA requires that: the state must inquire into the enrollment status of a Tribal child, provide Tribes and parents notice in child welfare proceedings, and ensure that Tribes are given the opportunity to intervene in the proceedings or transfer jurisdiction to the Tribal court. The party removing a child or terminating parental rights must provide active efforts to prevent the breakup of an Indian family and present testimony of a qualified expert witness supporting such a decision before placing an Indian child in foster care or terminating the parental rights over an Indian child. Such procedures seem reasonable for any child custody proceeding to ensure that the child is not removed from family and extended family without first trying to prevent the breakup of that family. And, these procedures are considered the “gold standard” in child welfare.
Even though the majority of child welfare organizations consider ICWA the “gold standard,” ICWA is constantly being litigated. “State courts of appeal interpret the law across the country at a rate of once every other day. There are, on average, 200 appellate cases annually.”[1] Because of the numbers, many Tribes do not have the capacity to take on these matters – especially since Tribes are often not notified by state courts properly, which increases the duration of litigation and the amount of harm on the child. Instead, many Tribes do not litigate and instead seek to support the cultural identity of the child and his or her connection with their Tribe; litigation almost always causes bitterness for the adoptive family and not healing. “In some decisions, the court’s confusion [about the Tribe’s position] is apparent and its ignorance of the Tribe’s position comes through in the opinion.”[2]
Meanwhile, nationwide (even after 41 years of ICWA), American Indian and Alaska Native children are placed into foster care at a rate 2.7 times greater than their proportion in the general population. This disproportionality is not happening because there are higher reports of abuse or neglect in American Indian communities; in fact, these numbers are consistent with other populations. The disproportionality comes as one moves further into the state child welfare system decision-making processes: the rates of removal of Indian children from their families are disproportionate compared to non-Indian families. Studies that have researched systemic bias in the child welfare system have found that Indian families were two times more likely to be investigated and four times more likely to have their children removed and placed in foster care than their white counterparts. ICWA was meant to provide protections against this systemic bias and reduce the flow of Indian children into these systems.
Read our Amicus Brief in Cherokee Nation et al. v. Brackeen et al., case no. 21-377 and Haaland et al. v. Brackeen et al., case no. 21376. This brief provided the Supreme Court with important context about the history and purpose of ICWA, and to highlight its continued vitality for Native Nations today.
On February 28, 2022 the U.S. Supreme Court agreed to hear arguments in Brackeen v. Haaland, the federal court case challenging the constitutionality of the Indian Child Welfare Act. Read our press statement here.
Casey Family Programs and 10 other child welfare organizations filed a brief in support of ICWA, which is available here. 25 States and the District of Columbia also filed a brief in support of ICWA, which is available here.
Amicus Brief on Behalf of 497 Tribes and 62 Tribal Organizations
Copies of all of the petitions and all amicus briefs can be found on the Tribal Supreme Court Project website here.
