Protecting ICWA Protects Kinship: SCOTUS Hears Oral Arguments in Brackeen v. Haaland
Kinship stretches far beyond blood relation. This same belief is shared by American Indian and Alaska Native (AI/AN) tribal communities, and why the Indian Child Welfare Act of 1978 (ICWA) is crucial to ensuring Native children and families preserve their cultures and strong kinship connections. Further, with the federal legislation under attack, the Protect ICWA Campaign — created by the National Indian Child Welfare Association (NICWA), the National Congress of American Indians, the Association on American Indian Affairs, and the Native American Rights Fund — has been critical for advocating on behalf of ICWA and Native children and families, outlining the implications it would have if overturned. ICWA’s constitutionality is now being challenged, and with the Supreme Court recently hearing oral arguments in the case, Brackeen v. Haaland, the fight to protect ICWA has been greater now than ever.
According to The Slate Group, ICWA models best practices by requiring legal cause to be shown for termination of parental rights of Native birthparents, prioritizing children’s placement with extended family, and valuing preservation of a child’s heritage by keeping them within their culture when possible. Moreover, in the event that a Kin-First placement is not successful, then a qualified family is then taken into consideration for placement.
In the case of Brackeen v. Haaland, plaintiffs including three white couples seeking to adopt Native children, the state of Texas, and several other states, claim that Congress did not have the authority to pass ICWA as they believe it violates equal protection guarantees and forces states to enact a federal law, unlawfully.
Yet, almost 500 tribes (including the Winnebago Tribe of Nebraska) and 62 native organizations, 23 States and D.C., 87 members of Congress, 26 child welfare organizations, the National Association of Counsel for Children, the ACLU, the ABA, and former foster children, have filed pro-ICWA amicus briefs in support of the legislation and the rights of Native children and families.
Moreover, supporting ICWA essentially supports the kinship within tribal communities and the fight to maintain their cultural identities.
ASCI previously spoke with Dr. Sarah Kastelic, executive director of NICWA, who explained, “I hear on a weekly basis from people who are suffering because of that severed relationship with their family, community and culture. I talk on a weekly basis with people who are saying, ‘I don’t know who I am, I don’t feel like I fit anywhere,’ and that has devastating consequences for their well-being. So, ICWA is so important to me because I see the damage that is done to those children and to their families when they’re not able to maintain that relationship.”
As the nation awaits the SCOTUS ruling, it is important underscore ICWA’s intended purpose; to prevent Native children from being separated from their extended families and tribes. ICWA further prioritizes the value of kinship care as a system response to protecting the well-being, cultural identities, and best interests of children and families. Moreover, if ICWA is overturned, AI/AN communities will likely face greater implications for other areas of Federal Indian Law and policy, further threatening their cultural kinship ties and rights.