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Uphold The Indian Child Welfare Act (ICWA): A Letter To Justice Kagan

Updated: Oct 24, 2023

Dear Justice Kagan,

I am Native American and part of the Mattaponi tribe in Virginia which has been a big part of my upbringing. From attending powwows to giving the Virginia governor two dead deer, hunted traditionally with a bow and arrow, to honor a centuries-old treaty every year, I am no stranger to the customs of the Mattaponi tribe. The same cannot be said for many members of other Native tribes due to historical government programs like Native American boarding schools: one of which my own Grandpa attended and experienced a variety of brutalities. These schools assimilated millions of Native Americans into Euro-American culture, completely wiping out the culture of tribes and severing the connections between children and their loved ones.

Thankfully, recent efforts have been made to help make amends for the issues of the past and revive Native American culture, like the Indian Child Welfare Act (ICWA). This is an act expressing that Native families and tribes are prioritized in adopting Native American orphans to keep tribes together and Native children involved in their culture, already lowering the 75-80% of Native families that have lost at least one child to the foster care system. Unfortunately, attacks on Native American sovereignty and culture are still happening. For example, a court case to be decided in June called Haaland v Brackeen threatens the authority of the Indian Child Welfare Act by attempting to revoke it completely.

Another strike to a tribe's sovereignty could lead to the extinction of tribes as a whole. Heritage is such a valuable part of a person's identity and the next generation of Native children should not endure any more loss of connection to their tribes. ICWA needs to be upheld in this court case to end the tradition of severing Native American children's connection to their families and community. I urge you, Elena Kagan, to use your vote to uphold ICWA.

In the 20th century, Senator James Abourezk noted that recent statistics showed a minimum of 25 percent of all Indian children were forcibly removed from their homes and put into Native boarding schools. Their culture was erased as they were put in an environment that not only didn’t include Native American culture but despised it as a whole. Cherokee Nation Principal Chief Hoskin Jr. states, “There was an erosion of language, culture, cohesion within the community, and an erosion of the civic life of tribal communities because we had federal and state-level policies that resulted in the dispossession of our children across Indian country.” Although placing a Native American child in the care of a non-Native American isn’t the same as forced assimilation, it does place that child in an environment where they cannot make cultural connections that are essential to repair the loss of culture from the past. Therefore, ICWA is not a violation of other families' rights to adopt a child, but rather a necessary response to a long history of federal policies that systematically separated Native American children from their communities.

People who don’t fully understand this history are also the ones trying to overturn the Indian Child Welfare Act as they don’t truly understand why it's in place, how it functions, and how tribal nations work themselves. The Brackeen family, a white Texan family attempting to adopt a Navajo boy they were fostering, argues ICWA discriminates based on race. However, according to Elizabeth Reese, an assistant professor of law at Stanford University, even saying that ICWA is about race completely “undermines the separate sovereignty that these governments have and their separate identities as tribal nations.” Federally recognized tribes retain authority over children in their tribe as it is within their exclusive jurisdiction rights which returns a piece of tribal sovereignty historically lost. This jurisdiction is not a form of racial priority but rather a recognition that Native American tribes were and still are separate nations. This standard is exhibited in ICWA as it places a child within the birth family first, then extended family, then members of the child's broader community (including their tribe), followed by other tribes, and finally non-related foster parents. The misunderstanding that ICWA doesn’t allow children to be placed in families outside their culture at all leads families to believe ICWA is based on race. In reality, ICWA does allow non-Native families to adopt children, it simply prioritized retaining as many of the child's communal connections first. Kristine Nelson, the author of A Ten-Year Review of Family Preservation, notes that children experience some form of trauma when separated from family. If non-Native foster parents received priority in adopting Native children, those children would consequently experience that trauma. The Indian Child Welfare Act helps to limit negative experiences caused by the separation of a child and family and also puts safeguards in place where a child can be removed from their family in cases of serious emotional or physical damage, respecting both Native and non-Native families and the welfare of individual children.

25 U.S. Code § 1912(e) also safeguards the child's best interests by ensuring that Native children can be removed from their families if serious physical or emotional damage is prevalent in that household. This assures that ICWA isn’t granting too much power to tribal sovereignty, but also must be used inversely to ensure that Native children will be placed with family when physical and emotional damage is not evident. 25 U.S. Code § 1912(d) must also be observed, stating active efforts must be “made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that if these efforts have proved unsuccessful” to grant adoption to non-tribal families without any further proof of maltreatment. In the case of Haaland v Brackeen, the remedial service would be voting to uphold ICWA.

While the moral argument for voting to uphold the Indian Child Welfare Act is crucial when ruling on Haaland v Brackeen, there is also a precedent to consider which was set in the court case Adoptive Couple v Baby Girl. This precedent states that the only case ICWA doesn’t apply to is when Native parents give up custody of the child and no other relatives step in to interfere with other means of adoption. In the case of Haaldn v Brackeen, the Navajo child’s extended family has stepped in, meaning ICWA does apply, giving the Native family first preference.

It is also important to consider the legal arguments made by third-party organizations through amicus curiae briefs. Casey Family Programs, an organization that has provided familial services for more than 50 years consulting with state welfare industries in all 50 states, say they follow “standards analogous to ICWA's even where it does not apply because the Act's standards are applications of universal best practices in child welfare." They structure their social work practice for all children and families, regardless of race, according to the core principles of ICWA because it's in all children's best interest to be placed as close to family as possible, which they have seen firsthand. In this way, upholding ICWA protects not only Native families but also courts and child welfare agencies' ability to serve the best interests of children legally.

I want to thank you for all your past efforts to help the Native American community, through your work on the advisory board of the American Indian Empowerment Fund for the Oneida Nation, improving many of their lives. While working with the fund you noted, “I hope I can contribute, in some small way, to making progress on” the Oneida Nation. Now with Haaland v Brackeen, you have the opportunity to make a positive impact on Native American communities. Various Native tribes supported your confirmation to the Supreme Court, including the Navajo, a tribe that you have praised due to their peacemaking court system and the tribe to which the child debated in Haaland v Brackeen was born. Now it is time to return their support by supporting ICWA and continuing the pattern of exemplary work you and your family have done for Native Americans.

You are in a prime position to make a stand for Native sovereignty with the proper education on tribal functions and support for your role on the Supreme Court from the tribes themselves. It is time to not only create a direct positive impact on a child's life by letting them return to their well-developed and fully functioning tribe but also to send a message to our country. The Indian Child Welfare Act must and will be upheld finally allowing Native American tribes to get closer to becoming the separate sovereign nations they are neat to be.


Sophie Wendling


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