The Congressional Research Institute for Social Work and Policy (CRISP) and the National Foster Youth Initiative (NFYI) will convene a Congressional Briefing tomorrow at 3:30 p.m. in Room HVC 201 in the U.S. Capitol Visitor Center, First Street and East Capitol Street, Washington, DC 20515, to explore legislative remedies should the Supreme Court overturn the constitutionality of the Indian Child Welfare Act (ICWA). The event is being presented in conjunction with the Congressional Social Work Caucus and the Congressional Caucus on Foster Youth.
The discussion will be moderated by CRISP Legislative Director Dr. Angelique Day, an associate professor at the University of Washington School of Social Work who is a descendant of the Ho Chunk Nation. Confirmed discussants include Kathryn Isom-Clause, Bureau of Indian Affairs Deputy Assistant Secretary for Policy and Economic Development; Kristen Torres, MSW, child welfare staff, Rep. Judy Chu (D-CA-27); and Sonia Begay, a member of the Navajo Nation and a grandparent caregiver who will share her lived experiences under the ICWA.
On November 9, the Supreme Court will hear arguments regarding four cases, including Brackeen v Haaleen, challenging the constitutionality of the Indian Child Welfare Act. The matter originated in a Texas District Court when an adoption petition by a non-Native couple—Chad and Jennifer Brackeen—seeking legal custody of a Native American child was challenged by the Navajo Tribe. The District Court ruled in favor of the Brackeens, declaring ICWA unconstitutional. The case was appealed, and a Fifth Circuit Court panel reversed the District Court’s decision. The panel’s ruling was then partially reversed by the full Fifth Circuit Court, declaring that while Congress had the authority to set standards for state agencies, parts of the law violated the 10th Amendment, which gives the federal government only those powers enumerated in the Constitution. All other powers belong to the states. Battles over “states’ rights,” including the right to enslave people, have been constantly fought throughout the history of the United States. Cases brought by the states of Texas, Louisiana, and Indiana have been consolidated for review.
Defenders of ICWA point to a report recently released by the U.S. Department of the Interior detailing atrocities committed at boarding schools against Indigenous children as justification for needing ICWA’s federal protections. The Department of Interior report showed that between 1819 and 1969, the United States operated or supported 408 boarding schools across 37 states (or then-territories), including 21 schools in Alaska and seven schools in Hawaii. The report described the boarding school environment, housing Native American children as young as four years old, as fostering “rampant physical, sexual, and emotional abuse; disease; malnourishment; overcrowding; and lack of health care.” The report also acknowledges that the federal government used money from Indian Trust Funds to pay schools, including those run by religious organizations, to remove children without parental consent.
Thirty-three Senators and 54 Members of the House of Representatives filed an amicus brief in support of the constitutionality of Congress’s authority to legislate the affairs of Native American tribes and their people. They urged the Supreme Court to “uphold the Indian Child Welfare Act’s constitutionality in all respects.” In addition, numerous amici briefs have been filed supporting ICWA’s constitutionality, including briefs by several tribal nations and the American Civil Liberties Union.
Passed by Congress in 1978 to protect American Indian and Alaska Native children from a history of mass family separations which resulted in devastating losses of language, culture, and identity for children and families, the ICWA has been heralded by many as the gold standard for providing child welfare services. Casey Family Program states that key among the principles of the law is “requiring active efforts to keep children safely in their homes and connected to their families, communities, and culture.” Several preliminary bills have been introduced in Congress designed to protect resources for Native American children, but more may be needed if the Supreme Court declares the ICWA unconstitutional.