Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Thursday, October 7, 2021

Petitions Filed to Supreme Court Asking For The Review Of Constitutionality Of Indian Child Welfare Act

From Muscogee Nation News:

The state of Texas, four tribes along with several parents, including non-Native, have filed petitions asking the U.S. Supreme Court to review the constitutionality of the Indian Child Welfare Act (ICWA). Also seeking review is President Joe Biden’s Secretary of the Interior, Deb Haaland, who became the named lead defendant in the case upon being confirmed to her position.

The petitions are a response to the U.S. 5th Court of Appeals decision last April in the Brackeen v. Halaand, formerly Brackeen v. Bernhardt, that alleged ICWA is unconstitutional for discriminating against non-Native families in the placement of Native children. The court ruled that Congress has authority to enact ICWA which gives preference to Indigenous families in the adoption of Native American children.

ICWA was passed by Congress in 1978 in response to Native American children being placed with non-Native families after being removed from their homes. Research by the National Indian Child Welfare Association found 25%-35% of all Native children were forcibly removed from their home by state child welfare and private adoption agencies and of those, 85% were placed with non-Native families, even when fit and willing relatives were available.

Read more here.

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