Matthew L.M. Fletcher
Neoshia Roemer has posted “The Indian Child Welfare Act as Reproductive Justice,” forthcoming in the Boston University Law Review, on SSRN. Here is the abstract:
After decades of abuse through family regulation, Congress enacted the Indian Child Welfare Act of 1978 (“ICWA”) to prevent the breakup of Indian families and promote tribal sovereignty. While ICWA seems like an outlier that addresses one category of children, it is not an outlier. Rather, I argue that ICWA is a tool of reproductive justice. By formulating a legal rights framework for reproductive justice in American jurisprudence, I discuss how the reproductive justice movement is grounded in U.S. law beyond the right to terminate a pregnancy that the Supreme Court abrogated in Dobbs v. Jackson Women’s Health Organization. By looking at the history of reproductive rights in American Indian communities, I discuss how family regulation challenges reproductive rights and tribal sovereignty considering Dobbs and Oklahoma v. Castro-Huerta. Indian child removals exist in the same history, context, and policy that disrupted the reproductive rights of American Indian families and tribal sovereignty in other areas. Before concluding that ICWA is still good law and good policy to disrupt family regulation and protect the reproductive rights of American Indian peoples, I consider where challenges to ICWA in Haaland v. Brackeen fit into this paradigm and the ongoing need for the protection of tribal sovereignty and reproductive rights for American Indian peoples. For nearly 400 years, the disruption of reproductive rights, including family regulation, has been at the heart of federal Indian policy. The current frame of family regulation as “saving” children means that it is often divorced from the notion of reproductive rights. As the history behind and contemporary challenges to ICWA demonstrate, it should not, and cannot, be separated from the other reproductive justice issues facing American Indian communities. To strengthen legal protections for American Indian people that disrupt these government interventions, like ICWA, is to realize reproductive rights more fully in the United States.