A Navajo woman and high school teacher teaches math to her students in a classroom.

What Happens if the Indian Child Welfare Act is Overturned?

Throughout history, individuals and settlers have undermined and threatened Indigenous peoples' livelihoods in what is now the United States. This includes multiple attempts to eradicate any traces of Native American or Indigenous cultures. These attempts put Native American communities at risk. Circling Eagle Law can help explain what legal stipulations are in place to help protect Indigenous peoples and their culture and what may potentially be at stake.

Assimilating Cultures

When settlers initiated the seizing of Indigenous lands, there was also the forced separation of families. As children were forcibly removed from their homes and families, they were subsequently forced to assimilate into the settlers’ norms and ideals of culture. This practice was extremely harmful, as it attempted to eradicate Native cultures and practices entirely. Without a future generation to educate, many Indigenous communities faced the loss of their way of living and culture as a whole.

Enter the Indian Child Welfare Act

In previous blogs, Circling Eagle Law has helped explain the Indian Child Welfare Act (ICWA) and its purpose. To briefly explain, this act was initially passed in 1978 with the purpose to of helping protect Indigenous children in the United States. Specifically, it targeted the forcible removal of Native American children from their homes and restricted the adoption process. When Congress passed this act, they wanted to uphold the best interests of those Indigenous children but also keep in mind the preservation and history of Tribes.

The Importance of the ICWA

Before the ICWA, an alarming number of Indigenous children were being wrongfully taken from their homes and placed into adoption agencies. It is estimated that anywhere from 25 to 35 percent of children were removed from their homes, with most of those removed placed in non-Native homes.

Furthermore, it is important to underscore how harmful these removals can be to Indigenous children. Studies have demonstrated that the prolonged separation from Tribes and cultures can severely harm a child’s mental and physical well-being. This level of trauma crosses multiple generations and is an all too common experience since the ICWA was passed.

Calling the ICWA into Question

While it is easy to see the importance and necessity of the ICWA in preserving Native American traditions and protecting children, the Supreme Court has reviewed and called this act into question before. In November 2022, the Supreme Court reviewed Brackeen v. Haaland, a lawsuit brought before the courts by the state of Texas and other individual plaintiffs. The lawsuit claims that the ICWA is unconstitutional and that Indigenous children should not have limitations on where they can be placed.

In the November 2022 hearing, the ICWA was critiqued and scrutinized by a couple who attempted to adopt an Indigenous child but did so unsuccessfully. The young girl now lives in her Tribal community and is learning her culture. This discussion comes at a time where in recent years the extent of abuse that occurred at Indian boarding schools is becoming more apparent, as well as the intergenerational impacts and traumas from that time.

The Supreme Court is expected to reach a decision regarding the ICWA by June 2023. It is not certain that they will uphold this act, which means that Native American communities could face further scrutiny.

If the ICWA is Overturned

Ultimately, if the Supreme Court makes the decision to overturn the ICWA, states would regain the control to remove Native children from their families. This would put the overall existence and longevity of tribes at risk. It is vital to continue to support the ICWA and take action against the possible overturning of this protection for Indigenous communities.

Want to Learn More About the ICWA? Circling Eagle Law is Here

If you need to learn more about the ICWA or have questions about Tribal Law matters, the team at Circling Eagle Law is here for you. We are prepared to help clarify any confusions you may have and answer your questions.

Call us at (701) 401-7404 to speak with our attorneys about Tribal and family law today.


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