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NDN Collective: The Indian Child Welfare Act is Under Attack #ICWA
Indian Country rallies as U.S. Supreme Court hears ICWA challenge
Thursday, November 3, 2022

WASHINGTON, D.C. — Indian Country will be out in force as the the nation’s highest court weighs the future of the Indian Child Welfare Act (ICWA).

Several hundred people are expected at the U.S. Supreme Court for the heavily-anticipated hearing in Haaland v. Brackeen next Wednesday. Arguments are expected to run nearly two hours as tribal leaders and tribal citizens rally out front with songs, prayers and a drum group.

“We need your help, we need your support,” Chairman Charles Martin of the Morongo Band of Mission Indians, one of the tribes involved in the closely-watched case, said during the National Congress of American Indians annual conference on Thursday.

“These are your children that we are trying to preserve,” Martin said in Sacramento, California, as NCAI entered the next to last day of the 79th conference.

House of Tears Carvers
A totem created by the House of Tears Carvers from the Lummi Nation rests on the campus of the University of Southern California in Los Angeles, California, during the National Congress of American Indians Sovereignty Run on October 23, 2022. The 1,785-mile relay raised awareness of the threats facing tribal sovereignty, including the upcoming Indian Child Welfare Act case. [sc name=cc

The Protect ICWA Campaign is hosting the event, which is scheduled to start at 9am, an hour before the hearing begins. The coalition consists of National Indian Child Welfare Association, the National Congress of American Indians, the Association on American Indian Affairs and the Native American Rights Fund.

The coalition will have signs ready for participants as Paul Day, the chief judge of the Leech Lake Band of Ojibwe, an Indian nation based in Minnesota, provides the blessing and invocation. Drumming, songs and prayers are going to be offered while the Joe Biden administration and tribal nations defend ICWA, a federal law intended to ensure that Indian children stay connected to their communities.

“The Indian Child Welfare Act was passed in Congress in 1978, after a big national survey found that about a third — 25 to 35 percent — of all Native children had been removed from their families and their tribes,” Rebecca Nagle, a journalist and citizen of the Cherokee Nation who has been covering the ICWA case, said during an even hosted by NDN Collective, a Native-led justice and equity organization.

After the hearing, Indian Country leaders and representatives will further discuss the importance of ICWA. Scheduled to be present at the U.S. Supreme Court are:

  • Sarah Kastelic (Alutiiq), Executive Director at the National Indian Child Welfare Association
  • Erin Doughtery Lynch, Senior Staff Attorney at the Native American Rights Fund
  • Dan Lewerenz (Iowa Tribe of Kansas and Nebraska), Assistant professor at the University of North Dakota School of Law and attorney with the Native American Rights Fund
  • Fawn Sharp (Quinault Indian Nation), President of the National Congress of American Indians and Vice President of the Quinault Indian Nation
  • Larry Wright (Ponca Tribe of Nebraska), Executive Director at the National Congress of American Indians
  • Shannon O’Loughlin (Choctaw Nation of Oklahoma), Chief Executive and Attorney at the Association on American Indian Affairs
  • Autumn Adams (Confederated Tribes and Bands of Yakama Nation), law student who has lived, personal ICWA experience

At the U.S. Supreme Court in 2013: Adoptive Couple v. Baby Girl
U.S. Supreme Court - Oral Arguments - Adoptive Couple v. Baby Girl

The last time the high court heard an ICWA case was nearly a decade ago, during the October 2012 term. The outcome of Adoptive Couple v. Baby Girl was not favorable — by a 5-4 ruling, the justices forced a Cherokee Nation father to accept the placement of his child with a non-Indian family.

Brackeen poses an even greater threat, this time to Indian children from all tribes. Conservative interests, supported by Republican state officials, are attempting to get rid of the law entirely by claiming it is based on “race” — rather than on the well-settled trust and treaty obligations of the United States, which are of a legal and political nature.

And despite the passage of time since Baby Girl, the Supreme Court has become more in line with conservative interests. Of the nine justices, six were chosen by Republican presidents — including three named by Donald Trump, who served only one term in office, though he continues to dispute his loss almost than two years after the 2020 election.

Just this week, one of those justices — the one who authored the Baby Girl decision almost a decade ago — posed alarming questions about Indian people and race during an unrelated matter involving affirmative action. And two others who ruled against tribal interests in the earlier ICWA case still sit on the high court.

To complement the rally being hosted by the Protect ICWA Campaign, the National Council of Urban Indian Health is hosting its own event on the day of the Supreme Court hearing. The organization will provide breakfast and a place to listen to the hearing from 8pm to 2pm next Wednesday.

“This event is open to all allies and advocates who are here to #ProtectICWA,” NCUIH said in an announcement on Thursday. Registration is available for the #ProtectICWA Breakfast and Supreme Court Listening Event.

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