Indianz.Com > News > Indian Country celebrates decision in support of Indian Child Welfare Act
Indianz.Com Video: Rebecca Benally – #ProtectICWA Celebration – June 15, 2023
Indian Country celebrates decision in support of Indian Child Welfare Act
Tuesday, June 20, 2023

WASHINGTON, D.C. — Indian Country is breathing a huge sigh of relief after the highest court in the land delivered a surprising victory in one of the most closely-watched cases in decades.

By a vote of 7-2, the U.S. Supreme Court last Thursday upheld the legality of the Indian Child Welfare Act (ICWA). The historic decision in Haaland v. Brackeen ensures that tribes can continue to protect their most precious resource — their children — through a federal law that recognizes the sovereignty of Indian nations.

“This is really a significant, important, emotional day for us across Indian Country,” Rebecca Benally, a citizen of the Navajo Nation, said just hours after the ruling was issued by the high court on June 15.

Benally happened to be in the Washington, D.C., to wrap up her work on the Treasury Tribal Advisory Committee. Over the last four years, she has been advising the Department of the Treasury on matters of importance to tribes and their citizens.

Rebecca Benally and Mellor Willie
Rebecca Benally, center, delivers a prayer in the Navajo language at the National Museum of the American Indian in Washington, D.C., on June 15, 2023, with Mellor Willie on the left and her granddaughter on the right. Photo by Indianz.Com (CC BY-NC-SA 4.0)

For Benally, a former elected official in a county located on the Utah portion on the Navajo Nation, the priorities include protecting children. To underscore the commitment, she brought her family — including two of her young grandchildren — to an event celebrating the ICWA decision.

“This is my granddaughter here with me — in hopes that one day I pass the baton on to what it means to serve her people.” Benally said in front of the National Museum of the American Indian in D.C.

As she delivered a prayer in the Navajo language, Benally stressed the importance of coming together at a place like the NMAI, which is one of the most visibly Native spaces in the nation’s capital, to commemorate the Supreme Court’s long-awaited decision.

“In the Dine, Navajo way, no matter how small, how big, how few, however many — if there’s a traditional moment, you celebrate it,” Benally said with one of her granddaughters at her side. “You let the holy people know and be known that you appreciate them, and that they were with us as our ancestors are.”

Indianz.Com Video: Justin Ahasteen – #ProtectICWA Celebration – June 15, 2023

Justin Ahasteen, the new executive director of the Navajo Nation Washington Office, echoed the sentiments at the celebration. He shared his own personal connection to ICWA — having almost lost his connections to his Navajo family as a young person until his tribal government stepped in and asserted its sovereignty.

“ICWA protected me and allowed me to return home to my people,” said Ahasteen, who was appointed to his leadership role in D.C. by recently-installed President Buu Nygren of the Navajo Nation. “My aunt then took us in and started raising us, and now my aunt is my mother.”

“So this law shows that it does work,” Ahasteen continued. “It does protect us, and it’s very important to me, you know, being a product of that because I get to keep my heritage. I got to keep my culture and I got to keep my identity — and that’s nothing that I would trade.”

Elizabeth Reese, a citizen of the Pueblo of Nambe, spoke on behalf of her boss, President Joe Biden of the United States. Although she’s relatively new to her job as Senior Policy Advisor for Native Affairs at the White House, she’s worked in Indian law and policy for decades, including a stint at the National Congress of American Indians in D.C.

“I think like many of you, I am so relieved and feel like a huge weight has been lifted — from the worry that we have had, thinking about this case and waiting about this case,” Reese said in what were her first known public remarks since joining the Biden administration in April.

Indianz.Com Video: Elizabeth Reese – #ProtectICWA Celebration – June 15, 2023

Before reading the statement issued by the president earlier in the day about the decision in Haaland v. Brackeen, Reese observed: “We know that this law is precious to Indian Country, and I think there’s very few laws that really, aptly deserve that designation.”

“I really think that precious is the right word when it comes to the when it comes to the Indian Child Welfare Act and what it has meant to our tribal communities,” said Reese, whose parents also happened to be attending the celebration at NMAI, having just arrived in D.C. the night prior.

Even before ICWA became law in 1978, Governor Stephen Roe Lewis of the Gila River Indian Community pointed out that tribes have always worked to keep their people together. He remembered his own father, the late Rodney Blaine Lewis, an attorney who was the first Native person to argue — and win — a case before the Supreme Court, bringing young citizens back to their homelands in Arizona.

“So this has been a long established precedent that needs to continue to be fought for, and I’m glad we’re here,” said Lewis, who by fate was in town on the day of the decision in support of ICWA. “I just happen to be here — as an advocate as my other fellow tribal leaders do here in D.C. — when this important victory came out.”

Still, Lewis urged Indian Country to remain on alert. Despite the resounding message from the Supreme Court, he said opponents of ICWA will try to find ways to undermine the law and threaten the nation-to-nation relationship between tribes and the United States.

“But the fight’s not over,” Lewis said in the nation’s capital. “Enemies of sovereignty are still there, those such as the Goldwater Institute and all of those anti-tribal sovereignty organizations, are still going to try to keep on attacking our families, the well-being of our children.”

“But don’t mistake that ICWA is the gold standard in protecting our children, protecting them from over a century of destructive, genocidal practices that our children were visited upon,” Lewis added.

Indianz.Com Video: Stephen Roe Lewis – #ProtectICWA Celebration – June 15, 2023

The Goldwater Institute is based in Arizona, home to more than 20 tribal nations. The organization was founded in honor of the late U.S. Senator Barry Goldwater, a conservative Republican who was among the many lawmakers who supported ICWA when it was signed into law some 45 years ago.

However, as Lewis noted, the organization is promising to continue its long-running campaign against ICWA. The group’s website features no less than three new posts about the ruling in Haaland v. Brackeen — including one vowing more litigation.

“While it’s shameful that the Court would turn a deaf ear to the cries of our country’s most at-risk children, it is at least gratifying that the Court left open the door to future lawsuits challenging the race-based injustices caused by ICWA,” the Goldwater Institute’s first post about Brackeen reads.

The second Haaland post complains that “ICWA applies based entirely on the blood in a child’s veins” — a position rejected, at least partially, by the Supreme Court with the majority decision authored by Justice Amy Coney Barrett. The opinion confirms that Congress has the authority to enact ICWA based on the unique legal and political relationship between tribal nations and the U.S.

The organization’s third Brackeen post rehashes the race-based argument with a link to an opinion written by Timothy Sandefur, who as vice president for Legal Affairs at the Goldwater Institute has been a leading voice against ICWA for more than a decade. Published by a conservative news outlet, the piece carries the incendiary title of “Supreme Court Decision Means Crimes Against Native American Children Continue.”

But while Brackeen did not completely resolve the race-based arguments of ICWA opponents, tribal advocates are hoping that the words from another member of the Supreme Court carry significant weight going forward. In a 40-page concurrence, Justice Neil Gorsuch strongly supported the views that were expressed in briefs submitted by nearly every tribal government and inter-tribal organization.

“Our Constitution reserves for the tribes a place — an enduring place — in the structure of American life,” Gorsuch wrote in a strong endorsement of tribal rights, following a lengthy explanation of the need for ICWA and the history behind forced removals of Indian children from their families and communities through genocidal laws, policies and practices, including the Indian boarding schools that were operated and supported by the U.S. government.

“It promises them sovereignty for as long as they wish to keep it,” Gorsuch reminded the public in his concurrence in support of tribes.

Indianz.Com Video: Ian Gershengorn – #ProtectICWA Celebration – June 15, 2023

Ian H. Gershengorn, the attorney who argued Brackeen on behalf of the tribal parties, said Gorsuch’s concurrence is already having an impact throughout the country, just hours after being released by the high court.

“I can tell you — from the emails that I’ve gotten in the last seven hours from people in the field saying they’re already citing Justice Gorsuch’s concurrence in court filings,” Gershengorn said to applause at the celebration in support of ICWA.

“They’re already working to use this to keep tribal families together,” Gershengorn added.

And in reference to ICWA’s status as the gold standard in child welfare law, Gershengorn said “this decision not only preserved what’s working, but is actually helping to make things better on the ground.”

“As we litigate cases in the Supreme Court on tribal issues, it becomes clear over and over that one of the most important things we do is get tribal voices before the court to let them understand what’s happening in Indian Country,” he said.

Indianz.Com Video: Morgan Saunders – #ProtectICWA Celebration – June 15, 2023

Through the Tribal Supreme Court Project, the Native American Rights Fund helped coordinate an unprecedented level of support for ICWA from every corner of Indian Country. More than 500 tribes and more than 50 inter-tribal organizations signed onto briefs, defending the law against attacks from conservative state officials and their non-Indian allies.

Morgan Saunders, an attorney at NARF, credited the ICWA victory to “the more than 500 tribal nations who came together to say: This is a line in this sand for us, and for tribal sovereignty and for our children.”

“I think we were successful,” Saunders said of Indian Country’s unity in defense of ICWA. “I know we were successful because of the unprecedented support and the coming together of all of those tribal nations.”

U.S. Supreme Court Decision – Haaland v. Brackeen
Full Document (133 pages)

Syllabus (8 pages)

Opinion [Barrett] (34 pages)

Concurrence [Gorsuch] (38 pages)

Concurrence [Kavanaugh] (2 pages)

Dissent [Alito] (11 pages)

Dissent [Thomas] (40 pages)

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