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June 15, 2023


Today, the Supreme Court upheld the Indian Child Welfare Act in a 7-2 landmark decision in Brackeen v. Haaland. The court rejects all of the challenges raised by petitioners to the Indian Child Welfare Act, "some on the merits and others for lack of standing." The opinion prevents states from removing Native children from their homes, writing “Texas therefore does not have standing to bring either its equal protection or its nondelegation claims.” This ruling represents a significant victory for Indigenous Peoples and Tribal Nations, and reaffirms the importance of allowing Native children access to their communities. The Water Protector Legal Collective (WPLC) celebrates this landmark decision and will continue to support efforts to protect the rights and well-being of Native American children.

In August 2022, WPLC signed onto the National Indigenous Women Resource Center’s (NIWRC) amicus brief joining the resounding, bipartisan support of ICWA. 497 Tribal Nations, 62 Native organizations, 23 states and DC, 87 congresspeople, and 27 child welfare and adoption organizations signed on to 21 amicus briefs to the U.S. Supreme Court in favor of upholding ICWA.

WPLC Legal Director, Natali Segovia (Quechua), reflected on today’s decision: “As an Indigenous woman and an attorney, I am used to heartbreak. We wake up to fight in the “iron-cold” of the law every day, knowing the scales rarely tip in our favor. But today, in this moment, we celebrate the #SCOTUS decision in Brackeen v. Haaland that upholds #ICWA… Here is a promise: while we celebrate today (in disbelief), we will never stop fighting to protect our future generations. We will rise to face every challenge. Whether in courts or in the streets, via education or legislation, our commitment to stand is fueled by our ancestors.

Justice Gorsuch wrote in the concurring opinion joined by Justice Sotomayor and Justice Jackson: “Often, Native American Tribes have come to this Court seeking justice only to leave with bowed heads and empty hands. But that is not because this Court has no justice to offer them. Our Constitution reserves for the Tribes a place—an enduring place—in the structure of American life. It promises them sovereignty for as long as they wish to keep it. And it secures that promise by divesting States of authority over Indian affairs and by giving the federal government certain significant (but limited and enumerated) powers aimed at building a lasting peace. In adopting the Indian Child Welfare Act, Congress exercised that lawful authority to secure the right of Indian parents to raise their families as they please; the right of Indian children to grow in their culture; and the right of Indian communities to resist fading into the twilight of history. All of that is in keeping with the Constitution’s original design.

The Indian Child Welfare Act (ICWA) was passed by Congress in 1978 to address the nationwide epidemic of Indigenous children being forcibly removed from their homes by child welfare agencies and placed into non-Native homes at disproportionate rates as an extension of the boarding school system. ICWA requires states to make active efforts to keep Indigenous families together and ensure these Indigenous children stay within their Tribal communities, where their identities will be celebrated and nurtured. These protections addressed assimilationist policies that led to state child welfare and private adoption agencies systematically removing almost a third of all American Indian and Alaska Native children from their homes. 85% of these adopted Indian children were placed into non-Indian homes.

The Supreme Court's decision to uphold the ICWA affirms the importance of Tribal Sovereignty and the preservation of indigenous cultures in the United States. By recognizing the unique legal, political, and cultural status of Indigenous peoples, the Court has taken a crucial step in protecting the rights and well-being of Native children, as well as the integrity of Tribal communities and Tribal Sovereignty.

WPLC extends heartfelt gratitude to the National Indian Child Welfare Association (NICWA), Native American Rights Fund (NARF), National Native American Boarding School Healing Coalition, National Indigenous Women’s Resource Center, Protect ICWA Coalition (@ProtectICWA), National Congress of American Indians (NCAI), Native Organizers Alliance, and Association of American Indian Affairs for their unwavering dedication in protecting and upholding Tribal Sovereignty and safeguarding the Indian Child Welfare Act (ICWA). Their tireless efforts were seen through this monumental victory. Thank you for your dedication, invaluable efforts, and the profound impact you have on preserving our cultural heritage and nurturing the future of Indigenous children within the embrace of our Tribal Nations.

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