WASHINGTON — The Supreme Court is preparing to hear oral arguments this upcoming Wednesday, Nov. 9th in Brackeen v. Haaland, a case that could gut the Indian Child Welfare Act (ICWA) — a law which establishes basic requirements to protect Native American children from continued forced removal from their families, tribes, and tribal culture.
The American Civil Liberties Union, ACLU of Montana and 11 other ACLU state affiliates represented by Cooley LLP, filed an amicus brief to the Supreme Court urging the court to uphold the constitutionality of the Indian Child Welfare Act. ICWA was passed by Congress in 1978 to address the nationwide epidemic of Native children being discriminatorily removed from their homes by child welfare agencies and placed into non-Native homes at disproportionate rates. ICWA requires state courts to make active efforts to keep Native families together, and it applies to children who are citizens or eligible to be citizens of a federally recognized tribe.
The ACLU’s brief argues that the Supreme Court has repeatedly upheld federal laws that, like ICWA, specifically apply to tribes and has recognized these laws are rooted in tribal political sovereignty rather than race.
Sharen Kickingwoman, Indigenous Justice Program Manager with the ACLU of Montana: “The United States has a long history of child removal as a practice of genocide through boarding schools and other means, the challenging of this law is a further extension of those practices. If ICWA is overturned, states would be allowed to forcibly remove Native children from their families, tribes, and culture without recourse, while simultaneously depriving tribal nations of future generations of members — putting the very existence of tribes in jeopardy. After centuries of colonization and genocide, ICWA remains essential to ensuring that our culture, communities and identity remain vibrant and strong.”
In Montana, a recent audit of the child welfare system showed that Montana is the worst state in the country for removing children - three times higher than the national average - and that even with ICWA, Indigenous children are disproportionately removed from their families and communities and disproportionately represented in the foster care system - amounting to 40% of the population. ICWA in Montana is keeping a crisis from turning into a catastrophe.
Sharen Kickingwoman, Indigenous Justice Program Manager with the ACLU of Montana: “Overwhelming evidence shows that Indigenous children removed from their homes and their kin grow up disconnected from culture, tradition, and identity. Children have a deeper understanding of their cultural background and have better life outcomes when they are able to participate in ceremony and be surrounded by youth, elders, and their communities. The eight federally recognized Tribal Nations within Montana have a fundamental right to govern themselves and make decisions on issues that affect their own people — including Native children — without interference from federal or state governments.”
The ACLU of Montana is committed not just to preserving ICWA, but ensuring that it is robustly implemented throughout Montana. If ICWA is overturned at the federal level, the onus may well fall on states to implement similar legislation to keep Indigenous children with their families and communities and nations together - even though states have long sought to undermine tribal sovereignty and identity. The ACLU of Montana supports current efforts to adopt a Montana ICWA during the 2023 Legislative Session.
In collaboration with the University of Montana Native American Law Student Association and the Montana Bar Indian Law Section, the ACLU of Montana will host a Brackeen Oral Argument Listening event on November 9th from 8:00am to 10:30am in the Castle Center at the University of Montana Law School. Students and others are welcomed to attend, listen to oral arguments at the United States Supreme Court, and hear from Law Professor Kekek Stark and the ACLU of Montana’s Policy Director Keegan Medrano.
The ACLU’s brief was filed by the ACLU, ACLU of NorCal, ACLU of Alaska, ACLU of Arizona, ACLU of Maine, ACLU of Montana, ACLU of Nebraska, ACLU of New Mexico, ACLU of Oklahoma, ACLU of South Dakota, North Dakota and Wyoming chapter, ACLU of Texas, ACLU of Utah, and ACLU of Washington.