Supreme Court to hear challenge to Indian Child Welfare Act — and a lot is at stake


Publish Date:
November 7, 2022
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ICWA’s challengers are non-Native couples who say that the law puts them “last in line” to adopt Native children and discriminates unfairly on the basis of race. Elizabeth Hidalgo Reese, a professor at Stanford Law School and a citizen of Nambé Pueblo, called this argument “unmoored” from the history of tribal nations in this country.

“It puts tribal governments in the position of doing some basic education,” Reese said. “When folks are enrolled in an Indian tribe, we’re not talking about the descendants of a racial group. We’re talking about the people who make up the citizenry of a domestic dependent nation.”

That distinction has been upheld by more than a century of Supreme Court precedent and serves as the basis for a body of federal law and policy that protects tribes’ authority to govern themselves.

“It matters a tremendous amount that tribes are seen as nations and not races,” Reese said.

Brackeen v. Haaland, as the Supreme Court case is titled, poses a threat to tribal sovereignty itself. With the stakes so high and far-reaching, the law itself and the grim history it was designed to rectify could be overshadowed as the court considers this case, Reese said.

“Part of what’s so brutal is that [ICWA] has done powerful work to make sure that Native people have ties to their identities and that they aren’t deprived of the right to grow up as who they are,” she said. “That will feel, unfortunately, I think, very far away during oral arguments.”

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