Experts say ICWA is essential to safeguard the best interests of Indian children
WASHINGTON D.C. – Today, 31 children’s rights organizations with extensive experience in child protection cases filed an amicus brief urging the Supreme Court to uphold the Indian Child Welfare Act (ICWA). In the matter of Haaland v Brackeen, advocates argue ICWA safeguards children’s constitutional rights and interests by protecting family integrity for Indian families. It also ensures the rights of tribal nations to be involved in child welfare matters involving their citizens. The brief demonstrates that ICWA protects Indian children’s best interests by ensuring a specific application of regular child welfare practice for children who have a particular legal status as a result of their tribal affiliation. In short, ICWA helps shape and ultimately defines best interest for Indian children.
“Lawyers who represent children know that ICWA protects children’s constitutional rights, their relationships to family, and their ties to their cultural identity,” said Allison Green, Legal Director of the National Association of Counsel for Children. “In overwhelmed state court systems, ICWA helps judges make informed best-interest decisions, and the children’s rights community stands together in support of this cornerstone law.”
Haaland v Brackeen is a lawsuit brought by Texas and several individual plaintiffs who allege that ICWA is unconstitutional and has worked its way through the 5th Circuit, which reaffirmed the constitutionality of ICWA in August 2019. Now under review by the United States Supreme Court, oral arguments are slated for November.
Congress passed the Indian Child Welfare Act in 1978 to prevent the separation of Indian children from their families and culture, addressing a history of harm and subsequent trauma experienced by Native communities. It recognizes the vital role of tribal identity and cultural continuity for the child and for tribal stability. Nationwide, lawyers who represent children agree that ICWA helps them pursue justice on behalf of native children.
“The unfortunate reality is that child welfare systems across the country are failing the children in their care, limiting the information available to courts,” said Kathryn Eidmann, Senior Supervising Staff Attorney at Public Counsel. “Texas falsely claims that ICWA harms children, when in fact its own child welfare infrastructure has been found to lack basic elements required to keep all children—including Indian children—safe. ICWA assists state courts by ensuring that they have the information and guidance needed to make sound, individualized determinations in Indian children’s best interests.”
For judges facing difficult, multifactor decisions when determining a child’s best interest, ICWA provides essential guidance by acknowledging tribal affiliation as a cultural bedrock for Indian communities that supports children as they grow into healthy adults. The law’s provisions include recognizing tribal jurisdiction over decisions about their children, establishing minimum federal standards for removing Indian children from their families, and creating placement preferences for Indian children who are removed from their home with extended family or tribal families.
“The Indian Child Welfare Act recognizes the unique history of forced family separation experienced by tribal children and has kept tribal youth connected to their families and heritage,” said Kristen Weber, Senior Director of Child Welfare at National Center for Youth Law. “This constitutional and necessary protection recognizes it is in the best interest of children to be with their family. Tribes and families should be empowered to lead in making decisions that impact their children’s futures, not forced to live in fear of unwarranted, unnecessary and harmful state intervention.”
Read the amici statements for interest https://publiccounsel.org/wp-content/uploads/2022/08/Brackeen-amici-statements-of-interest.pdf