The U.S. Supreme Court last week agreed to hear an important case that could determine the future of the Indian Child Welfare Act, a 1978 law that aims to protect against the separation of Native American families.
The case, Haaland v. Brackeen, is a consolidation of several cases, one of which centers around a couple in Minnesota and the Native American girl from the White Earth Nation they attempted to adopt.
Professor Angelique Eaglewoman (Wambdi A. Was’teWinyan), director of Mitchell Hamline’s Native American Law and Sovereignty Institute, has taught about the Brackeen cases as they’ve moved through the courts. A member of the Sisseton Wahpeton Oyate (Dakota), Professor EagleWoman answered a few questions about the case for us to better understand its importance.
Mitchell Hamline: What is ICWA and its purpose?
Angelique EagleWoman: The Indian Child Welfare Act of 1978 is a remedial law that is meant to address the decades of removal of American Indian children from their families by state social workers and state courts using poverty and other issues as neglect. The ICWA allows the child’s Tribal Nation to intervene and seek to transfer the child’s case to tribal court. The ICWA also requires state courts to follow placement preferences to allow foster or adopted tribal children to be placed in the homes of their relatives, tribal families, or other Indian families to allow cultural and tribal connections to be maintained.
MH: What is the significance of this case to Indian Country?
AE: This case is brought by non-Native families who challenge the federal law and seek to adopt tribal children. The significance of the case is to undermine the cultural and tribal connection of tribal children to their home communities and Tribal Nations.
MH: What are the arguments being presented on either side?
AE: The non-Native families and state governments are asserting that the ICWA is based on a racial classification and violates the constitutional equal protection clause and that the ICWA is unlawful federal action imposing requirements on state governments.
The U.S. and Tribal Nations are asserting that American Indians and Alaska Natives have a political status as upheld in the Morton v. Mancari decision in 1974 and are not subject to a racial classification. The history of the U.S. and Tribal Nations’ relationship is founded on treaty-making between sovereign governments, and the U.S. may enact federal laws to uphold its trust obligations to Tribal Nations and to protect tribal children from being adopted out of tribal homes and communities.
MH: Can you explain the difference between Native Americans and Tribal Nations being part of a political class rather than being part of a racial class or some other distinction under the law? Why is this distinction important?
AE: Tribal Nations and tribal members are in a political relationship with the U.S. based on a sovereign-to-sovereign status. The U.S. has ongoing treaty obligations, including remedying past policies where the U.S. government rounded up tribal children and forced them to attend military and religious boarding schools. From 1958 to 1967, the U.S. federally funded the Indian Adoption Project in partnership with state social workers to remove tribal children from their homes and adopt them to white families. Tribal leadership lobbied the U.S. Congress to stop these policies and enact the Indian Child Welfare Act to keep tribal children in tribal homes.
MH: What do you think will or should happen?
AE: The U.S. Supreme Court should uphold the sovereign-to-sovereign relationship of Tribal Nations with the U.S. and recognize the history of the Indian Child Welfare Act. State courts are still removing tribal children at shockingly high rates, and the ICWA is relevant today. Due to the historic and ongoing U.S. – Tribal Nations’ relationship, the U.S. Congress has the authority to protect tribal children and set the placement preferences to preserve the future of the Tribal Nations – their children.
Supreme Court to review ICWA case (Indian Country Today)