U.S. Supreme Court Hears Arguments Challenging ICWA
On November 9, 2022, the U.S. Supreme Court heard oral arguments in Brackeen v. Haaland. The case is a ruling by the full Federal U.S. Court of Appeals for the 5th Circuit. The Appeals Court ruling was a mixed ruling on the legality of the Indian Child Welfare Act (ICWA), and the Biden Administration made the request for the review along with several tribal groups and supporters.
Lawyers for the state of Texas and for non-Native adoptive parents told the justices that ICWA violates the U.S. Constitution by discriminating based on race. The tribes and the U.S. government countered that the courts have long considered American Indians to be a political group, not a racial group. The Supreme Court appeared divided over the constitutionality of the 1978 law that regulates the adoption of Native American children. 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.
Four national Native organizations—the National Indian Child Welfare Association, the National Congress of American Indians, the Association on American Indian Affairs, and the Native American Rights Fund—have established the Protect ICWA Campaign and have released the following materials to assist advocacy organizations and policy makers in supporting the goals of the Campaign:
Eleven states, including Michigan, have codified ICWA protections under state laws. Click HERE for resources and information about the Michigan Indian Family Preservation Act (MIFPA).