The Supreme Court is preparing to hear oral arguments on Wednesday, Nov. 9, 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, along with the ACLU of South Dakota and multiple ACLU state affiliates and 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.
If ICWA is overturned, states would be allowed to forcibly remove Native children from their families, tribes, and culture while simultaneously depriving tribes of future generations of members — putting the very existence of tribes in jeopardy.
“To roll back the protections the Indian Child Welfare Act provides could return us to an era where Native children were indiscriminately torn from their families,” said Stephanie Amiotte, ACLU of South Dakota legal director and enrolled member of the Oglala Lakota (Sioux) Tribe. “This was a key part of centuries-long history of forced Native child removal as a tool of cultural genocide. It also ignores the overwhelming evidence that being removed from homes and disconnected from culture, tradition and identity is deeply harmful to Native children. Native children have better life outcomes and deeper understanding of their cultural background when they have access to their tribes and tribal culture. The destruction of Native families puts the future survival of Native Nations and culture at risk. The Indian Child Welfare Act supports Native children, keeps Native families together, and preserves tribal culture, and it must be upheld.”
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. 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.
The ACLU’s brief was filed by the ACLU, ACLU of Northern California, 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, ACLU of North Dakota, ACLU of Wyoming, ACLU of Texas, ACLU of Utah and ACLU of Washington.
About the ACLU of South Dakota
The American Civil Liberties Union of South Dakota is a non-partisan, nonprofit organization dedicated to the preservation and enhancement of civil liberties and civil rights. The ACLU of South Dakota is part of a three-state chapter that also includes North Dakota and Wyoming. The team in South Dakota is supported by staff in those states.
The ACLU believes freedoms of press, speech, assembly, and religion, and the rights to due process, equal protection and privacy, are fundamental to a free people. In addition, the ACLU seeks to advance constitutional protections for groups traditionally denied their rights, including people of color, women, and the LGBTQ+ and Two Spirit communities. The ACLU of South Dakota carries out its work through selective litigation, lobbying at the state and local level, and through public education and awareness of what the Bill of Rights means for the people of South Dakota.