WASHINGTON ― Dozens of lawmakers from both parties and both chambers of Congress filed an amicus brief on Friday in federal court defending the constitutionality of the Indian Child Welfare Act, a 1978 law that’s been vital for keeping Native American communities together — but that’s being challenged in court by a handful of states and non-Native individuals who say it’s not fair to them.
ICWA requires states to prioritize placing Native children in foster or adoptive homes with Native families over non-Native families. Plaintiffs in a lawsuit brought by Texas, Indiana, Louisiana and non-Native prospective adoptive parents argue that the law is unconstitutional because it’s race-based and violates the equal protection clause.
It’s the most consequential challenge to ICWA since the law’s inception, and tribes fear a ruling against it could threaten every tribe’s inherent sovereignty.
The case, Brackeen v. Bernhardt, is currently pending before the U.S. Court of Appeals for the 5th Circuit.
Sens. Tom Udall (D-N.M.) and John Hoeven (R-N.D.), vice chair and chairman of the Senate Committee on Indian Affairs, respectively, led dozens of senators and representatives in filing their amicus brief as the 5th Circuit reopens its August ruling that affirmed ICWA’s constitutionality. The court’s August ruling reversed an unprecedented ruling by the U.S. District Court for the Northern District of Texas that struck down ICWA as unconstitutional.
“The district court erroneously concluded that ICWA is predicated upon race rather than tribal affiliation,” reads their brief. “Because the federal government’s special trust relationship to Indian tribes derives from their status as sovereigns predating the formation of the United States, receiving the benefits of that relationship today necessarily requires a showing of ties to those ancestral communities. ... In short, Indian ancestry is inextricably linked with tribal membership and Indian sovereignty.”
Here’s the full text of their amicus brief, along with the list of lawmakers who signed on to it:
The reason ICWA exists at all is because Congress tried to remedy to an ugly period in American history: For decades, the U.S. government took tens of thousands of Native children away from their families on reservations, sometimes forcibly, and put them in boarding schools or placed them with white families to assimilate them into white culture.
These children were punished for speaking their native tongue and stripped of their traditional clothing. Their hair was cut. They suffered physical, sexual and cultural abuse. Some never returned home. Surveys in 1969 and again in 1974 found that between 25 to 35% of all Indian children had been separated from their families.
ICWA has since helped to rebuild Native communities and become “a model for the child welfare policies that are best practices generally,” according to 31 national child welfare groups that filed a brief in the Brackeen v. Bernhardt case. Striking down the law, they argue, would have a “devastating real-world effect.”
Rep. Deb Haaland (D-N.M.), one of two Native women in Congress and a signatory on the amicus brief, said ICWA exists for a reason: The U.S. government has a record of violating tribal sovereignty by taking Native children from their families.
“Like many Native American families, my family has been shaped by family separation policies as well. My grandparents were taken away from our family and sent to boarding school, and that trauma has impacted our family and other families in Indian Country,” Haaland said in a statement. “This legislation was enacted to address these human rights violations. As a country, we need to commit to protecting Native children and keeping them connected to their communities and stopping the cycle of separation and abuse.”
Oral arguments in Brackeen v. Bernhardt are scheduled for the week of Jan. 20, 2020.