The Indian Child Welfare Act as Reproductive Justice and Why RJ Folks Should Keep Haaland v. Brackeen on their Radar

Elias Fox Bova Schmidt, If/When/How RJ Fellow

On November 9, 2022, the Supreme Court is set to hear oral arguments for Haaland v. Brackeen, a challenge to the constitutionality of the Indian Child Welfare Act (ICWA). This is an important case for RJ folks to have on their radar – the outcome of Haaland v. Brackeen could have detrimental consequences for the state of Indian law, tribal sovereignty, American Indian and Alaska Native children, and reproductive justice for Indigenous communities across the United States. 

History of ICWA 

ICWA was passed in 1978 to combat the forced removals of Native children from their homes and placement into White families by Federal, State, and private agencies. In the context of ICWA, “Indian” is an appropriate term as it specifically denotes a political identity relating to enrollment in a Federally recognized Native tribe. An enrolled member of a Federally recognized tribe is a citizen of a sovereign Native nation. All Federally recognized tribes have unique enrollment requirements, as would be the case for citizenship of any other nation. ICWA applies only to children that meet the requirements for citizenship of a Federally recognized Native nation. Thus, in the context of ICWA, “Native” or “Native American” and “Indian” are not interchangeable. Additionally, “Indian” is generally not appropriate to refer to a Native or Indigenous person outside the context of that specific political identity. 

ICWA sets minimum federal requirements for the removal and out-of-home placement of American Indian/Alaska Native (AI/AN) children. The minimum standards of ICWA seek to keep AI/AN children within their families, their communities, or with other AI/AN families. Only once these options are exhausted are AI/AN children placed with non-AI/AN families. For decades, ICWA has been described as the gold standard for child welfare laws, and praised by child welfare experts for its goal of keeping children with their families and communities. 

The United States has a long history of forced removal of Native children as a means of eliminating Indigeneity and tribal sovereignty. Although the first boarding schools may have been opened earlier, the Federal Indian Boarding School Initiative has identified 401 Indian Boarding Schools that operated with Federal support for 150 years between 1819 and 1967, including 21 schools in Alaska and seven schools in Hawai’i. Through these schools, Native children were ripped away from their families and forced to endure genocidal and assimilationist abuse at the hands of school administrators under one principle: “kill the Indian in him, and save the man.” By 1926, it was estimated that 26% of all school-aged Native children were placed in Indian boarding schools. Similar genocidal projects were implemented by colonial governments across the globe, such as Canada’s residential schools and Indian Day Schools (1870’s-1990’s), New Zealand’s Native School System (1867-1969), and Australia’s removal policies of the Stolen Generations (1910-1970). 

The U.S. Federally funded boarding school system began winding down by the middle of the 20th century and ended by the 1970’s. However, by the 1950’s, a new system of forced removal was created. As Native families and traditional childrearing practices were deemed unfit to raise Native children, child welfare institutions and government agencies felt that Native children needed to be placed in “better” homes. Thus, Federal, State, and private agencies began to create and fund formal and informal adoption projects. A 1966 Bureau of Indian Affairs press release reads: “One little, two little, three little Indians–and 206 more–are brightening the homes and lives of 172 American families, mostly non-Indians, who have taken the Indian waifs as their own.”  

From 1958 to 1967, The Bureau of Indian Affairs, supported by the Child Welfare League of America, ran the Federal Indian Adoption Project as a program that promoted the removal of Native children from their homes and adoption into the homes of White families. The Mormon church ran a similar Indian Placement Program from 1947 to 2000, removing Native (mostly Navajo) children from their homes and placing them into Mormon homes and onto Mormon farms for forced labor. Other Native children were removed from their homes by informal policies as well. 

These programs and policies had devastating effects on Native children, communities, and families. A 1976 survey conducted by the Association on American Indian Affairs found that 25-35% of all AI/AN children were being removed from their homes and 85% of those children were placed with non-AI/AN families. In Alaska, AI/AN children were 4.6 times more likely to be placed in adoptive homes than non-AI/AN children. In Arizona, the state with the largest number of American Indian children at the time of the survey, AI/AN children were 4.2 times more likely than non-AI/AN children to be placed in adoptive homes. Before ICWA, at least 80% of families living on reservations lost at least one child to the foster care system. 

ICWA was passed, thanks to Native and allied advocates, in an effort to protect AI/AN children from these genocidal practices of forced removal. With the minimum standards set by ICWA, a greater effort is made to keep AI/AN children with their families and communities. ICWA additionally also allows tribes control over the placement and welfare of enrolled children, allowing tribes to exert sovereignty over their own citizens. Thus, ICWA is a tool that can be used to strengthen tribal sovereignty and to protect the welfare of the children of sovereign Native nations. 

ICWA is not perfect, as AI/AN children still face disparities within the child welfare system. AI/AN children are still four times more likely to be removed from their homes than non-Native children and 56% of all adopted AI/AN children are adopted outside of their families and communities. There are additional, more nuanced considerations as well. Because ICWA only applies to Federally recognized tribes, ICWA does not apply to Kanaka Maoli children, as the colonial United States government refuses to recognize Native Hawaiian sovereignty. However, despite any weaknesses, ICWA continues to be much needed for the sovereignty of Native nations and the protection of AI/AN children. 

Haaland v. Brackeen  

Haaland v. Brackeen is a lawsuit brought by Texas (and formerly Louisiana and Indiana) and several individual Plaintiffs who argue that ICWA violates the U.S. Constitution. The case includes three additional cases that have been consolidated for the Supreme Court to hear at the same time. Mainly, Texas and the individual petitioners in the case argue that ICWA’s placement priority requirements violate the Consitution’s guarantee of equal protection by discriminating against non-AI/AN prospective adoptive parents on the basis of race. It should additionally be noted that the individual petitioners in this case include several White couples that were unable to adopt AI/AN children due to ICWA’s placement requirements. 

The argument made by Texas and the individual petitioners fundamentally misrepresents what “Indian” means within the context of ICWA. As stressed above, Native nations are political bodies that pre-date the United States and are recognized by the US Constitution as sovereign nations with the right to self-government. Thus, the identity of “Indian” is a political identity, not a racial identity, similar to how being a citizen of a foreign nation would function. 

However, we know that tribal sovereignty, pre-determined judicial precedent, and the text of the Constitution has little meaning when it comes to the rulings of the Supreme Court. Although ICWA withstands constitutional muster based on a good faith reading of the law itself and the understanding that “Indian” in the context of ICWA is not a racial categorization, there is a very real threat to the abolishment of ICWA this term. If ICWA is abolished and tribes lose the ability to control the placement of AI/AN children, this will be the beginning of the end of tribal sovereignty within the United States. With Haaland v. Brackeen, the future of Indian law, tribal sovereignty, and the protection of AI/AN children are in the hands of the Supreme Court. And with the current bench, things aren’t looking good. 

ICWA as RJ – What We Can Do to Help

SisterSong defines Reproductive Justice as “the human right to maintain personal bodily autonomy, have children, not have children, and parent the children we have in safe and sustainable communities.” ICWA is situated in the very center of major RJ implications – without ICWA, AI/AN families will lose the right to raise and nurture children within their families and communities. When Native children are removed from their families, communities, and cultures, the practices and traditions of their Native identities are often lost. This has devastating consequences for Native children and their Nations. 

On November 9, 2022, the Supreme Court will begin to hear oral arguments for Haaland v. Brackeen. Oral arguments of Supreme Court cases can be heard online. The oral arguments period of Haaland v. Brackeen presents a crucial time for reproductive justice advocates and organizers to learn about and voice support for ICWA. 

RJ speaks to the right and power of all people to raise their children at home with their families and in traditional practices and culture. In RJ spaces, ICWA should be understood as a tool of Reproductive Justice; ICWA protects AI/AN children from removal from their homes, from their families, and from their communities simply because they are raised in traditional Indigenous ways or because they are raised in conditions of systemic poverty. ICWA also allows for federally recognized Native nations to control the custody and placement of their children, further protecting tribal sovereignty and the preservation of cultural practices and tradition through the safety and love of Native children. Unfortunately, with the current judicial climate, RJ advocates and organizers should also begin to plan for what happens if ICWA is ruled to be unconstitutional. 

ICWA provides protection for AI/AN children by prioritizing placement within a child’s family, community, and culture. Although ICWA is not perfect, it allows an opportunity for AI/AN children to thrive within their own families and communities, even when they are removed from the care of their biological parents. ICWA also has the ability to preserve cultural practices and traditions passed through generations via Native children. 

Overturning ICWA would be a continuation of 500 years of colonialism and genocide at the hands of settler governments across Turtle Island. It would also be a part of the calculated attack by those in power on the bodily autonomy of the most marginalized people within the United States. The threat to ICWA posed in Halaand v. Brackeen is real. It is a Reproductive Justice issue, an issue of tribal sovereignty, and an issue regarding the protection of Indigenous communities against further attempts of genocide. 

If you consider yourself to be an RJ organizer, advocate, or ally, Halaand v. Brackeen and the current threat to ICWA should be on your radar in the coming months. Check out the Protect ICWA Campaign for opportunities to show your support for ICWA and Indigenous communities. If you are interested in providing additional support to Indigenous RJ organizations, consider donating to Indigenous Women Rising. RJ folks must begin to prepare for how we will protect all communities and kin as SCOTUS continues to strip us of any semblance of protection that previous judicial precedent had afforded us.