Since European settlers arrived on the shores of what is now known as the United States, federal and state governments, intent on seizing Indian lands, have sought to undermine and threaten the existence of tribes through the forced separation and assimilation of Native children. By severing Native children from their families, tribes and culture, colonizers believed they could stamp out Indigeneity and erase tribal people altogether. As with any nation, the future ceases to exist if children are prevented from carrying on the languages, traditions, and knowledge passed down from each generation to the next.
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.
Tribes 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. But last November, the U.S. Supreme Court heard oral arguments in Brackeen v. Haaland, a case that challenges the constitutionality of ICWA.
If the Supreme Court rules ICWA unconstitutional, it could have devastating consequences for Native children, families and tribes while simultaneously putting the existence of tribes in jeopardy. A decision striking down the Indian Child Welfare Act risks centuries-long legal precedent upholding tribal sovereignty. The United States cannot repeat its unfortunate history of ignoring the voices of Native families, putting tribal sovereignty at risk again.
That’s why many states addressed ICWA during their 2023 state legislative sessions. Several states, including North Dakota and Wyoming, codified ICWA into state law during legislative sessions this year.
Mike Nowatzki, a spokesperson for North Dakota’s Gov. Doug Burgum, said the state’s new law ensures “that these important protections for Native American children and families will remain in place in North Dakota regardless of what happens with the ICWA in the federal court system.”
In South Dakota, however, legislators couldn’t even pass a bill to study the welfare of Indigenous children in South Dakota’s foster care system. Currently, nearly 60 percent of children in South Dakota's foster care system are Indigenous, according to the National Indian Child Welfare Association.
Senate Bill 191, which failed in the House of Representatives, would have created an interim task force to “address the welfare of Indian children in South Dakota” by bringing together representatives from all nine tribal nations, the Department of Social Services, the state court system and lawmakers from the House of Representatives and the Senate – a necessary and long overdue discussion endorsed by the Tribes.
But one legislator said that the size of the task force would have been a drain on state resources. Killing Senate Bill 191 signals the state’s refusal to work with sovereign tribal nationals to protect Indigenous children and families.
Even if ICWA survives Brackeen, it’s still crucial that South Dakota make a better effort to work in conjunction with the Tribes to protect tribal sovereignty and Indigenous children. This isn’t a problem that the Tribes or the state can solve on their own.
Coming together with Tribes in the spirit of collaboration is extremely important, and needs to be a priority. Native families have a right to stay together, to care for their children, and to preserve tribal culture by ensuring access to their cultural identity, language and heritage. The ACLU of South Dakota aims to support Indigenous communities – and follow their lead – as they work to uphold their sovereignty, dignity and autonomy.
Tribes have a fundamental right to govern themselves and make decisions on issues that affect their own people — including Native children, who have unique needs based on their culture — without interference from federal or state governments. Honoring tribal sovereignty like this isn’t about discrimination or race. Rather it recognizes the unique political status that tribes are afforded under the Constitution and other federal laws, including Indian Country laws.