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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