On Wednesday, November 9th, 2022, the Supreme Court heard oral arguments in the Brackeen v. Haaland case about the constitutionality of the Indian Child Welfare Act (ICWA). “After more than three hours of oral argument, several justices expressed doubt about specific provisions of the wide-ranging law, even if they did not appear inclined to strike down the law in its entirety,” according to this article from the SCOTUS blog.
ICWA covers any child who is either a member of a federally recognized tribe/Alaska Native Village or is eligible for membership in a federally recognized tribe/Alaska Native Village and is the biological child of a member of a federally recognized tribe/Alaska Native Village. ICWA establishes the minimum standards for removal of Indian children from their families and creates a preference that Native children are placed with family or tribal members as the first options, before considering placing them with non-Native families.
Opponents of the law say it exceeds Congress’ power, violates states’ rights, and imposes unconstitutional race-based classifications. The current challenge makes two basic arguments: that Congress lacked the power to enact it and that it violated equal protection principles by drawing distinctions based on race.
As we reported previously, the challenge to ICWA was brought by people and the states of: Chad Everett Brackeen; Jennifer Kay Brackeen; state of Texas; Altagracia Socorro Hernandez; state of Indiana; Jason Clifford; Frank Nicholas Libretti; state of Louisiana; Heather Lynn Libretti; and Daniel Clifford. They were joined by some other states but also opposed by a multi-state brief in support of ICWA that included California, Alaska, Arizona, Colorado, Idaho, Illinois, Iowa, Maine, Massachusetts, Michigan, Minnesota, Mississippi, Montana, New Jersey, New Mexico, Oregon, Rhode Island, Utah, Virginia, Washington, and Wisconsin.
CWLA was one of 31 organizations that joined an Amicus Brief by national organizations headed up by Casey Family Programs that sought to show how the ICWA standards are in the best interest of native children and represent the gold standard of child welfare practice; the brief was mentioned twice during the oral arguments.