Petitions filed calling into question the constitutionality of ICWA

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Morgan Taylor / Journalist

WASHINGTON – The state of Texas, four tribes, and several parents, including non-Indigenous people, have filed petitions asking the United States Supreme Court to review the constitutionality of India’s Child Welfare Act (ICWA ).

Those seeking Supreme Court review include the State of Texas, three adoptive families who are individual plaintiffs in the case, and the Cherokee Nation, the Oneida Nation, the Quinault Indian Nation and the Indian Band of Indians. Morongo mission. President Joe Biden’s Home Secretary Deb Haaland is also asking for a review, who has become the main defendant in the case after being confirmed in her post.

The petitions are a response to the 5th U.S. Court of Appeals ruling last April in Brackeen v. Halaand, formerly Brackeen v. Bernhardt, that the ICWA is unconstitutional for discriminating against non-Indigenous families in the placement of Indigenous children.

The 5th United States Court of Appeals ruled that Congress had the power to pass the Indian Child Welfare Act (ICWA) which gives preference to Native families in adopting Native American children.

Texas argues that India’s child protection law makes it more difficult to remove Native American children from their families in foster care and adoption cases. The parties claim that the law is racist and gives too much power to tribes over states.

At trial, the adoptive parents and the state of Texas argued that federal law contradicted state law that requires adoptions to be in the best interests of the child. They said the Indian Child Welfare Act harms children by keeping them in the child welfare system longer than necessary, given that they have loving and consenting adoptive parents.

Tribes and other advocates have said that the best interests of Indian children are served when they are able to maintain strong ties to their cultural roots, whether that means reuniting with their biological parents or moving in. with other tribal families.

The ICWA was passed by Congress in 1978 in response to the placement of Native American children in non-Native families after being removed from their homes. Research by the National Indian Child Welfare Association has found that 25-35% of all Indigenous children have been forcibly removed from their homes by state-owned private child welfare and adoption agencies and among of these, 85% were placed with non-Aboriginal families, even when they were fit and consenting parents were available.

The National Congress of American Indians issued the following statement:

“On September 3, 2021, the United States, tribal defendants, and state and private plaintiffs filed motions asking the United States Supreme Court to review the decision of the Fifth Circuit Court of Appeals in Brackeen v. Haaland, a case challenging the constitutionality of Indian law. Child Protection Act (ICWA). The Protect ICWA Campaign Supports the United States and Tribal Defendants Who Have Defended ICWA and Its Critical Protections for Indian Children and Families Who Are the Subject of Child Custody Proceedings in State Courts .

“ICWA represents the gold standard in child protection practice and has helped tens of thousands of Indian children and families find equity and healing in child protection systems across Canada. state for over 40 years.

NCAI is one of the national Native American organizations formed by the Protect ICWA Campaign. The others are the National Indian Child Welfare Association, the Association on American Indian Affairs, and the Native American Rights Fund.

“There will be an additional briefing over the next 30 days and then / possibly the Court will decide whether or not to hear the case,” according to a post on Turtle Talk, a leading blog on the Indian country’s issues.

The United States Supreme Court does not have to hear the case. If four of the nine judges agree, Brackeen v. Haaland will be granted a certiorari and will be summoned for oral argument.

Adoptive parents c. Baby Girl was the last Indian child protection case to be heard by the US Supreme Court in 2013. The court ruled in favor of non-Indigenous parents over a non-custodial Indigenous parent.

Mvskoke Media will follow the case and report important updates on this story.


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