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Monday, January 17, 2022

Coming Up: Supreme Court ICWA cases


There are also four cases challenging the constitutionality of the Indian Child Welfare Act of 1978. Congress passed ICWA to respond to concerns that state child-welfare practices were causing large numbers of Native American children to be inappropriately removed from their families and tribes and placed with non-Native foster families or adoptive parents. ICWA established minimum federal standards for most child-custody proceedings involving Native American children. The en banc U.S. Court of Appeals for the 5th Circuit struck down some provisions of ICWA as unconstitutional. According to the 5th Circuit, some provisions violate the 10th Amendment because they impermissibly “commandeer” the states. Those provisions, it concluded, include a requirement that state agencies bear the cost and burden of providing expert testimony to support placing Native children in foster care, a requirement that state agencies provide remedial services to Native families, and a requirement that state agencies maintain certain child-placement records.

The 5th Circuit also affirmed the district court’s judgment that ICWA’s preference for adoptive placement with “other Indian families” and “Indian foster home[s]” violates the equal-protection component of the Fifth Amendment. The 5th Circuit upheld other provisions of the act. The court has relisted a total of four petitions, two filed by the federal government and a group of Native American tribes seeking to revisit 5th Circuit holdings invalidating provisions, and two filed by the state of Texas and private challengers seeking to overturn parts of the 5th Circuit decision upholding other ICWA provisions. The petitions are Haaland v. Brackeen, 21-376, Cherokee Nation v. Brackeen, 21-377, Texas v. Haaland, 21-378, and Brackeen v. Haaland, 21-380.

What does blood have to do with identity? Kendra Mylnechuk, an adult Indigenous adoptee, born in 1980 at the cusp of the enactment of the Indian Child Welfare Act, is on a journey to reconnect with her birth family and discover her Lummi heritage.

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