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Wednesday, March 8, 2023

Brackeen v. Haaland : Future of ICWA


On September 20, 2022, social workers, advocates, and Hill staffers gathered in Room HV201 in the Capitol Visitor Center to discuss how Congress might respond if the United States Supreme Court rules the Indian Child Welfare Act (ICWA) is unconstitutional.  Co-hosted by CRISP and the National Foster Youth Initiative, the briefing was held in conjunction with the Congressional Social Work Caucus and the Congressional Caucus on Foster Youth.  Congresswoman Barbara Lee (D-CA-13), chair of the Social Work Caucus, provided a video greeting to set the tone for the briefing. 

CRISP Legislative Director Angelique Day, an associate professor at the University of Washington School of Social Work and a descendant of the Ho Chunk nation, consisted of Kathryn Isom-Clause, Bureau of Indian Affairs Deputy Assistant Secretary for Policy and Economic Development; Kristen Torres, MSW, child welfare legislative aide for Rep. Judy Chu (D-CA-27); and Sonia Begay, a member of the Navajo Nation and grandparent caregiver who provided compelling testimony about her experiences with ICWA during the time she sought parental  custody of her grandchildren who attended the briefing.  

The briefing began with opening remarks from CRISP director Dr. Charles E. Lewis Jr., followed by remarks from Rebecca Louve Yao, executive director of the National Foster Youth Institute, a nonprofit organization founded by Rep. Bass to 

From left: Kathryn Isom-Clause, Bureau of Indian Affairs; Dr. Angelique Day, Sonia Begay, and Dr. Charles E. Lewis Jr.

revolutionize the foster care system.  Camille Loya provided remarks on behalf of Rep. Bass. 

The most compelling testimony was delivered by Sonia Begay. She told her story about how her oldest son was struggling with substance abuse and temporarily lost custody of his three children to the Kentucky foster care system.  She was not granted custody of the children and was appalled when she arrived at the state office and her grandson’s hair had been cut.  His hair had never been cut before because of traditional culture. She said it reminded her of the photos she had seen of native children being taken into boarding schools in the 1940s and 50s.  His hair had been cut within the span of 12 hours of him going into state care.  She then contacted the Navajo Nation social services and the Kentucky social services refused to grant her custody despite the Navajo representative citing the need to comply with ICWA.  She said the trauma of those events still haunts her. She was not living on the reservation, so she did not have access to local resources but turned to organizations and social workers seeking help and guidance. She discovered bruises on the back and buttocks of her youngest granddaughter.  When social services saw the injuries, they accuse the grandmother of abuse.   The tribe went into action, sending a legal team to help get the children released to their grandmother.  The process took more than nine months.  Eventually, she received a formal apology from Kentucky social services.  She credits the ICWA for allowing her to take custody and care for her grandchildren.

The focus of the briefing was to discuss how Congress might respond should the Supreme Court declare ICWA to be unconstitutional.  

Several bills have been introduced in the House of Representatives to protect the well-being of Native American families: H.R.1688, the Native American Child Protection Act was introduced on March 21 by Reps. Ruben Gallego (D-AZ-7), Sharice Davids, and Dusty Johnson (R-SD) and passed in the House on May 12, 2021; H.R.4348, the Tribal Family Fairness Act, was introduced by Rep. Bass on July 7, 2021; and H.R.8954, the Strengthening Tribal Families Act, was introduced by Reps. Judy Chu, Don Bacon (R-NE-2), Raul Ruiz (D-CA-36), and Tom Cole (R-OK-4) on September 23, 2022.

On November 9, 2022, the Supreme Court heard Brackeen v. Haaland and three other cases challenging the constitutionality of the Indian Child Welfare Act passed in 1978 giving tribal governments primary jurisdiction over the removal of Native American children in custody, foster care, adoption cases, and their placement in appropriate homes.  The Fifth Court of Appeals issued a divided ruling in April 2021. Defenders of ICWA point to a report recently released by the U.S. Department of the Interior detailing atrocities committed at boarding schools against Indigenous children as justification for needing ICWA’s federal protections. 

The Department of Interior report showed that between 1819 and 1969, the United States operated or supported 408 boarding schools across 37 states, including 21 schools in Alaska and 7 schools in Hawaii.  The report described the boarding school environment, housing Native American children as young as four years old, as fostering “rampant physical, sexual, and emotional abuse; disease; malnourishment; overcrowding; and lack of health care.”

Sonia Begay provided emotional testimony.

Thirty-three Senators and 54 Members of the House of Representatives filed an amicus brief in support of the constitutionality of Congress’s authority to legislate the affairs of Native American tribes and their people and urged the Supreme Court to “uphold the Indian Child Welfare Act’s constitutionality in all respects.” Numerous amici briefs have been filed supporting ICWA’s constitutionality, including briefs by several tribal nations and the American Civil Liberties Union.


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