Tribes file cert petition defending Indian Child Welfare Act before Supreme Court

Recently, four Native American tribes and the United States Solicitor General filed cert petitions with the U.S. Supreme Court in Brackeen v. Haaland, defending the Indian Child Welfare Act (ICWA) and its constitutionality. Cherokee Nation Principal Chief Chuck Hoskin, Jr., Morongo Band of Mission Indians Chairman Charles Martin, Oneida Nation Chairman Tehassi Hill, and Quinault Indian Nation President Guy Capoeman issued the following statement:   

“State and federal courts have repeatedly upheld the constitutionality of the Indian Child Welfare Act for decades, but attacks on this critical law continue. Our tribes continue to fight for ICWA because it ensures the best outcomes for Indian children by keeping them connected to their families and tribal communities. We can never go back to the dark times when Indian children were removed from their homes and stripped of their heritage.  

“ICWA provides a process for protecting the best interests of Indian children in the adoption and foster care systems. It is overwhelmingly supported across the political spectrum, and has been defended by Republican and Democratic administrations alike. Child advocates such as the Casey Family Programs call ICWA’s protective features the “gold standard” of child welfare.  We look forward to the Supreme Court upholding the constitutionality of this vital law.”  

In 2017, individual plaintiffs Chad and Jennifer Brackeen, a couple from Texas, along with the state attorneys general in Texas, Louisiana, and Indiana, sued the U.S. Department of the Interior and former Secretary Ryan Zinke to challenge ICWA. In August 2019, the Fifth Circuit Court of Appeals reaffirmed that ICWA is constitutional. In October 2019, despite having their own adoption finalized, plaintiffs in Brackeen v. Bernhardt continued their attacks on the law and requested an en banc rehearing before the Fifth Circuit Court of Appeals. In April 2021, the Fifth Circuit upheld important aspects of ICWA that serve the best interests of Indian children and tribal families.  

ICWA has broad, bipartisan support from tribes, states, members of Congress, and presidential administrations, which have recognized that the law is an appropriate exercise of Congress’s authority to legislate in the field of Indian affairs and does not violate the Tenth Amendment or equal protection provisions of the Constitution.  

The cert petition from the tribes can be found at https://protectindiankids.com/wp-content/uploads/2021/09/Brackeen-Cert-Petition-Final.pdf. 

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