When it comes to championing the health of Indigenous children in the United States, few pieces of legislation possess the profound significance of the Indian Child Welfare Act (ICWA). It is not merely a dry legal document, but a lifeline of cultural health for Indigenous nations and countless children in the foster care system.
In the coming weeks, the Supreme Court of the United States (SCOTUS) is expected to release its decision on Haaland vs Brackeen, a case that challenges the constitutionality of the ICWA. The plaintiffs, a non-Indigenous Texan couple named Chad and Jennifer Brackeen, claim that the ICWA's preference for placing Indigenous children with foster parents from their tribal nations discriminates against non-Indigenous individuals who wish to adopt Indigenous children.
Proponents of the ICWA, which include 486 tribal nations, assert the law’s preference for Indigenous families promotes cultural well-being and is based on the political status of tribes, rather than the social construct of race. According to the Native American Rights Fund (NARF), “The ICWA does this by upholding family integrity and stability and by keeping Indian children connected to their community and culture. The ICWA also reaffirms the inherent rights of tribal nations to be involved in child welfare matters involving their citizens.”
Samantha Maltais, a member of the Aquinnah Wampanoag tribe, ICWA advocate and a third-year student at Harvard Law School, shares this perspective.
“Tribes have been and always will be sovereign nations. Their status as such pre-dates America’s founding and its earliest formulations of what race is. To misunderstand this truth not only threatens the welfare of Native children today, but could also undermine the ways we write federal Indian laws and policies for future generations to come,” she said.
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