Thumbnail photo "Native American family smiling" by an unknown author is listed under Public Domain Mark 1.0.

In the midst of Native American Heritage Month, the Supreme Court heard oral arguments for Haaland v. Brackeen on Wednesday, a case where states including Texas, Indiana and Louisiana and other individual plaintiffs are hoping to overturn the Indian Child Welfare Act (ICWA).

ICWA is a federal law that acknowledges the sovereignty of tribal nations by making Native communities a stakeholder in Native American foster child cases. To do this, it gives tribal courts jurisdiction over a Native child’s foster care placement. Tribal courts prioritize placement with the child’s extended family members, fellow tribe members or other Indigenous families. Beyond the courtroom, ICWA aims to prevent the breakup of Native families – for example, it authorizes the Secretary of the Interior to make grants to Native tribes which can be used to develop home improvement programs and fund a family’s legal guidance in child custody proceedings.

Megan Bang, a Northwestern School of Education and Social Policy (SESP) professor of Ojibwe descent, said overturning ICWA would be a denial of tribal sovereignty and Native citizenship. The petitioners who hope to overturn ICWA with Haaland v. Brackeen say that it violates the equal protection clause of the Constitution. They argue that being Native can be seen as a racial classification rather than a political one, making the policies of ICWA that treat Native children differently unconstitutional.

“People are arguing that [ICWA] is unfair because of a race-based argument. The only way that's true is if you deny Indigenous sovereignty and that is one of the fundamental problems: the way that people perceive things,” Bang said. “Indigenous people are not a racial category. They're not a racial identity. They're a political sovereign status.”

ICWA was enacted in 1978. When the House of Representatives published research which revealed that Indigenous children were being disproportionately removed from their homes, often without reason, ICWA was written to mitigate the consequences. Some Indigenous people see the foster system’s attitude towards Native children as a modern version of the boarding school policy, where from 1869 up until the 1960s Native children were removed from their homes and placed in federally operated boarding schools, forcing assimilation into Western culture.

But ICWA is about more than just establishing a requirement to involve a tribe in a child’s case, according to Pam Silas, Associate Director at the Northwestern Center for Native American and Indigenous Research (CNAIR). Ensuring that an Indigenous foster child can grow up with their tribe gives them a space to connect with their heritage.

“It's about identity, but it's also about being a tribal citizen. It's beyond caregiving. It's a sense of belonging,” Silas said.

Silas identifies herself as an adult foster child. At three years old, she was put into the foster system pre-ICWA. Not having a tribal authority involved in her foster care case meant that she grew up without a strong connection to her Native heritage.

“There was nobody who was looking out for [me and my siblings] from a tribal standpoint,” Silas said. “Maybe they would have found a home for us with ties to our community, and we could have been raised in our identity, in our culture.”

Bang believes that growing up disconnected from Native culture has drastic effects on an Indigenous child’s life.

“If you're put in a classroom for 12 years where no one ever recognizes you or knows anything or is committed to your sovereignty or your future, it's a recipe,” Bang said. “We know that children who don't get good positive identity reinforcement struggle.”

The resistance to ICWA began in 2018 when a federal district court in Texas determined that ICWA violated the U.S. constitution. The plaintiffs included three states including Texas and seven individuals that were looking to adopt a Native child.

The defendants – the federal government and intervening tribal nations – appealed the ruling to the Fifth Circuit Court of Appeals. They received an outpouring of support from other tribal nations, child welfare organizations and congress members. In August 2019, a three-judge panel at the appeals court reversed the decision of the district court, deeming ICWA constitutional.

Two months later, the Fifth Circuit agreed to an en banc review to reconsider ICWA. This review required all available judges of the circuit court to hear the case, due to its legal complexity. The en banc panel released a 325-page decision in April 2021, deeming parts of ICWA to be unconstitutional. In September 2021, all parties – defendants and plaintiffs alike – petitioned the Supreme Court to review the decision. After a year of granting petitions, consolidating cases involving ICWA and collecting legal briefs, the justices heard oral arguments for Haaland on Nov. 9.

Studies show that Indigenous adolescents who grew up without extensive education on the value of their culture, instead facing national discrimination and seeing the erosion of their traditions, are more predisposed to alcohol and drug use, leaving school early, depression and suicide. Bang believes that a lack of investment in Native communities systemically perpetuates their societal disadvantages; Native Americans experience significantly higher rates of substance abuse than any other racial or ethnic group.

For Bang, this systemic disadvantage is half of what perpetuates Indigenous children entering the foster system at disproportionate rates. The other half, she added, is bias. Bang believes that the foster system is an example of how the government punishes people of color for their systemic disadvantages. For example, the rates of children struggling with school attendance can coerce Native communities to enroll their children to Western-school systems.

Silas adds that this bias also manifests in how caseworkers view Native living traditions. Child Protective Services establishes preferences – such as how much personal space a child should have – which Silas said can conflict with the living traditions of reservation communities.

“[On reservation communities] they're not living in what’s a biased opinion of what constitutes a safe environment,” Silas said. “Maybe they're being raised by grandparents or maybe there’s multiple families in the house. Maybe they're not dressed in the same way [the caseworkers] think they should be dressed. Maybe what they're eating is not what they approve of. There's a lot of bias in those judgments.”

It is through ICWA that the cultural nuances of Indigenous communities can be respected by including tribal courts in foster cases. With the threat of it being overturned, Bang fears that the world will enter another wave of the boarding school policy era.

“I feel like it’s a fair warning of ‘We’re coming for your kids,’" Bang said. "I feel like the implication is that we could have a hemorrhaging of children from our communities again. One of the things that is super powerful to me is that I do feel like our communities are making strides towards healing, and another era of assault feels like a bit of a death sentence to me.”