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ACLU Weighs In On Indian Child Welfare Case

Separating Native American children from their tribes results in more substance abuse, mental health struggles, and even suicide, and the Indian Child Welfare Act should remain in place to protect their interests.

That’s part of the argument a Montana organization made this week in a case the U.S. Supreme Court is scheduled to hear in November challenging the 1978 act. Congress adopted the law to remedy the crisis of removing Native children from their tribes and to promote tribal stability.

The American Civil Liberties Union and affiliate ACLU of Montana, along with other state partners, filed Thursday, Aug. 18, a friend of the court brief in the case, Haaland vs. Brackeen, noting their support for federal laws designed to preserve Native families and respect tribal heritage.

However, the ACLU also points out, as have others, that if the Supreme Court undermines the Indian Child Welfare Act, it could open the door to “sweeping consequences” for other tribal protections. Some tribes believe it will compromise their sovereignty.

Congress originally passed the law after finding “shocking” disparities in placement rates between Native and non-Native children, “which have resulted in grievous harm to the safety and well-being of many Indian children removed from their communities,” the brief said. “Congress found that those disparities reflected the disturbing history of removing Indian children from their homes and tribal settings to ‘civilize them’ in furtherance of assimilation or termination phases of American policy.”

Removal was a tool to harm Native children and eradicate tribes altogether, and the brief said the act was part of the response from Congress. At the time the law was passed, it said as many as 35 percent of all Native children had been removed from their families.

But in 2018, a Texas decision deemed the Indian Child Welfare Act unconstitutional, finding it supported racebased discrimination against non-Native families in the placement of Native children. The case landed in the Fifth Circuit and has made its way to the Supreme Court.

In its brief, the ACLU of Montana argues Congress has regulated Indian affairs as a matter of political sovereignty, not race, and the Constitution and Supreme Court have recognized “Indian” as a political and not racial term.

“It does not matter what race a child or the child’s parent may be,” the brief said. “What matters is membership in a federally recognized Indian Tribe, or eligibility for such membership.”

The brief also points out that the disparities Congress saw more than four decades ago continue to exist. The Nevada Current reported that nationwide, Native children are nearly three times as likely to be in state foster care.

“Indian children today are still removed from their homes and communities far more frequently than non-Indian children, and that is precisely the harm ICWA sought to address,” the brief said.

Congress has a duty to protect the “trust relationship” between the U.S. government and the tribes, and the Indian Child Welfare Act continues to serve that interest, the ACLU said.

“To live up to its end of the deal, Congress must act to keep tribes intact — and there can be no question that keeping Indian children with their families and communities is an essential way to do so,” the brief said.

The act should stand because it not only aims to remedy the “Indian child welfare crisis,” the brief said, it does so “with precision.”

“ICWA recognizes the common-sense principle that an Indian household is best equipped to pass on Indian traditions and ensure the ongoing viability of Indian Tribes, which advance the government’s recognition of tribal sovereignty,” the brief said.

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