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WPLC joins calls to #ProtectICWA in Defense of Indigenous Rights and Tribal Sovereignty


November 8, 2022


Today is the 45th anniversary of the Indian Child Welfare Act. The Supreme Court will hear oral arguments in Haaland v. Brackeen tomorrow on November 9, 2022. In August, the Water Protector Legal Collective (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.

Like VAWA, ICWA was passed with the understanding that no sovereign is better equipped to protect the safety and welfare of Indian children than their own nations.NIWRC amicus brief

“We are honored to represent the NIWRC in its fight to protect Indigenous women and children from violence by strengthening tribal sovereignty,” stated Shoney Blake, co-counsel and co-author of the NIWRC amicus brief. “ICWA’s place in protecting the futures of our Tribal Nations cannot be understated. ICWA, a law praised by the American Pediatrics Association as a model, should be upheld and more strictly enforced, not weakened.”


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. A blow to ICWA could put the existence of smaller tribes in jeopardy. If the Supreme Court overturns ICWA on November 9, states would once again be allowed to remove Native children from their homes, losing our future generations.

Who are the Brackeens?

In June 2016, a 10-month-old Navajo and Cherokee baby was placed in the home of a white, evangelical couple in Fort Worth, Texas. Chad and Jennifer Brackeen were “self-conscious about their material success,” and found that fostering a child was a way to “rectify their blessings.” In the meantime, in accordance with ICWA, the Navajo Nation located a Native family to adopt the baby. The Brackeens argued that they had more money than the child’s Navajo relations and therefore would be a better fit for the child. Judge Alex Kim stated that ICWA violated the Texas constitution and sided with the Brackeens. In 2017, they filed a federal lawsuit alongside the state of Texas, Louisiana, and Indiana, and non-Indian individuals, the Librettis, Cliffords, and Ms. Hernandez. The Cherokee Nation, Oneida Nation, Quinault Indian Nation, and Morongo Band of Mission Indians intervened in the case. Judge O’Connor found that ICWA was unconstitutional.

“The case from plaintiffs Chad and Jennifer Brackeen, who are not Native, argues that ICWA ― which only allows Native children to live with non-Native foster parents if a tribal family is not available ― is a form of racial segregation. Their case ignores tribes entirely, and argues that our youngest tribal citizens are ‘barely native.’Se-ah-dom Edmo (Shoshone-Bannock, Nez Perce, and Yakama), Executive Director of Seeding Justice

Gibson Dunn, the law firm that represented the Dakota Access Pipeline and Chevron, also represents non-Indian plaintiffs Chad and Jennifer Brackeen. Rebecca Nagle, a citizen of the Cherokee Nation, said on the podcast This Land, “Seven months after the [#NoDAPL] resistance camp in North Dakota was shut down, Gibson Dunn filed the Brackeen’s case in federal court. Matthew McGill, that lawyer at Gibson Dunn, is currently working on three challenges to ICWA that we know of…” Striking down the Indian Child Welfare Act will continue to narrow tribal sovereignty, as the Supreme Court decision in Castro-Huerta did earlier this year. Lawfare and attacks on the rights of Indigenous children is a new low for law firms who regularly represent pipelines that prey on the land of Tribal Nations.

Texas Attorney General Ken Paxton, conservative think tank, the Goldwater Institute, and other private interests are the parties backing the Brackeens. These supporters claim they are “saving” Native children and hold to the fact that being “Indian” is a racial identifier.

ICWA opponents have two things in common: deep pockets and minimal contact with Tribal Nations, Native organizations, tribal leaders, or Native peoples. They say they want the best for Native children, but not a single Tribal Nation, not a single independent Native organization, and not a single independent child welfare organization supports their cause. They are motivated by self interests and want to grow their control of Native land, Native industry, and Native futures.National Indian Child Welfare Association (NICWA)

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