LINCOLN, Neb. — Today, the American Civil Liberties Union (ACLU) of Nebraska joined its national office and 11 other ACLU state affiliates in filing an amicus brief with the U.S. Supreme Court that urges the court to uphold the constitutionality of the Indian Child Welfare Act (ICWA).
The federal law is slated to be reviewed by the Supreme Court this fall via Brackeen v. Haaland.
Congress passed ICWA in 1978 to address a nationwide crisis of child welfare agencies forcibly removing Indigenous children from their homes and placing them into non-Native homes at disproportionate rates, a continuation of family separation practices that began far earlier in U.S. history.
ICWA requires state courts to make active efforts to keep Native families together. It also establishes placement preferences for Native children in Native homes. The Nebraska Indian Child Welfare Act (NICWA) builds on these protections by clarifying state policies and procedures regarding implementation of ICWA.
The ACLU’s brief argues the Indian Child Welfare Act is constitutional and urges the Supreme Court to uphold the centuries-long legal precedent upholding tribal sovereignty — including tribes’ right and ability to preserve their unique cultural identities, raise their own children and govern themselves.
With the upcoming hearing and a decision expected next year, the ACLU of Nebraska has committed to working closely with Indigenous advocates to ensure Nebraskans understand the law and its importance.
“All Native children should know who they are and be connected to their families and tribal communities,” said Misty Flowers, executive director of the Nebraska Indian Child Welfare Coalition, Inc., and member of the Santee Sioux Nation. “ICWA and NICWA protect the long-term best interests of Native children by respecting their rights and honoring their cultural connections. This involves practices that help prevent the removal of Native children from their homes and prioritize the placement of children with families that reflect the unique values of their tribal culture. These laws also critically respect the legal and diplomatic relationship between tribal nations and the federal government. Children protected by ICWA are dual citizens of both the United States and their tribal nation, and their tribe has the right to be involved in the placement process and the right to institute its own placement preferences. The protections that are being challenged are vital and we hope the justices understand that.”
“All Native families have a right to stay together, care for their children and preserve tribal culture by ensuring access to their cultural identity, language and heritage,” said Rose Godinez, senior legal and policy counsel at the ACLU of Nebraska. “It is also important to note that tribes have an inherent right to govern themselves and make decisions on issues that affect their people, including Native children. We are proud to support this effort to ensure that all Native families in Nebraska have a right to stay together and to protect children from forced removal from their families, tribes and tribal culture.”
“Throughout history, the United States government has enacted countless policies to steal Indigenous children from their homes and to erase their identities,” said Theodora Simon, indigenous justice advocate with the ACLU of Northern California and a member of the Navajo Nation. “The explicit goal of these policies was, and continues to be, the complete erasure of Indigenous people. If the Indian Child Welfare Act is overturned, tribes will again be stripped of their right to keep their families together. This is a tragedy as we know that having connection to our cultures, languages and identities is in the best interest of Native children.”
The brief was filed by the ACLU, ACLU of Northern California (NorCal), ACLU of Alaska, ACLU of Arizona, ACLU of Maine, ACLU of Montana, ACLU of Nebraska, ACLU of New Mexico, ACLU of Oklahoma, ACLU of South Dakota, North Dakota and Wyoming chapter, ACLU of Texas, ACLU of Utah, and ACLU of Washington.
The Supreme Court will hear oral arguments in Brackeen v Haaland this November.
