ELEANOR COX, YEAR 13
The Supreme Court of the United States began considering the case of Haaland vs. Brackeen on 9th November 2022 which is challenging the Indian Child Welfare Act (ICWA).
What is the Indian Child Welfare Act (ICWA)?
ICWA was introduced in 1978 due to the high rate of Native American children being removed from their families. This meant “25 to 35% of all Native children” were removed “often without evidence of abuse or neglect that would be considered grounds for removal” with 85% of them put into non-Native families “even when fit and willing relatives were available”.
The introduction of ICWA gave tribal governments more power in decisions relating to the removal of Native children, and put a firmer emphasis on keeping children within their tribes. It is widely accepted that ICWA improves the health of children that it affects as they are able to connect with their culture and remain with their families if they do not have a reasonable justification to be removed. ICWA was created in response to a long history of assimilation – the policy of removing Native American children with the intention of eradicating their culture and tribes from existence. The removal of Native children is used as a primary weapon by opponents of Native American people and their sovereignty because “when you take our children, you take our future”.
Within living memory, Native American children were sent to residential boarding schools with an unknown number dying. In fact, the grandmother of one of the children, whose previous foster parents are attempting to overturn ICWA, attended one of these schools and was “resolved that she would never abandon her granddaughter”.
Who wants to overturn ICWA and why?
There are seven individual plaintiffs and three states bringing the case to the Supreme Court; including 3 sets of foster parents and a non-Native biological parent. The three sets of foster parents are white, and wanted to adopt Native children so felt that ICWA should be overturned due to racial discrimination. The non-Native biological parent wanted one of the foster couples to adopt her child and “stated ICWA was “interfering with her wishes to have the Librettis adopt her baby.”
However, many supporters of ICWA believe that opponents are not simply concerned about ICWA itself, but about the federal framework behind it. This is because the framework also “recognises the inherent right of Tribal Nations to protect their sacred sites, burial grounds, and drinking water”. These concerns are exacerbated by the fact that the plaintiffs are represented by a law firm (Gibson and Dunn) that have represented the largest oil and gas companies. Tribal nations worry that if ICWA is overturned and their tribal sovereignty is attacked, oil and gas companies will go onto their lands and remove resources without permission.
Who is defending ICWA?
“A total of 497 Indian tribes and 62 American Indian organizations, 87 members of Congress, 23 states and Washington, D.C., have filed briefs in opposition to the Brackeen plaintiffs” (62 Native organisations and 27 child welfare and adoption organisations have also given support to ICWA).
Conclusion
The possible overturning of ICWA is regarded as a decision as important as the overturning of Roe vs Wade because it attacks Native American sovereignty. This would allow enemies of Native people to remove their children, lead to the eradication of Native American tribes, and enable oil and gas corporations to remove resources from Tribal lands without permission.
If ICWA is overturned a great deal of damage will be done to the rights of Native Americans; including the right to their land and their children’s rights to their culture. This would amount to a genocide against Native Americans, as their tribes could be destroyed if their children are removed at the rate that they were before ICWA was introduced. Therefore, a possible overturning of ICWA needs to be treated with the same level of outrage as the overturning of Roe v. Wade as the ramifications are similarly damaging.