States Urge Supreme Court to Validate Indian Child Welfare Act

Last month, half of the states in the nation and the District of Columbia joined the federal government and four federally recognized tribes in urging the U.S. Supreme Court to uphold the constitutionality of the Indian Child Welfare Act.

The Indian Child Welfare Act, commonly referred to as ICWA, was signed into law 43 years ago today to correct the practice of removing Indigenous children from their families and placing them in non-tribal adoptive or foster homes. The 1978 law is now at the heart of child custody cases involving Indigenous children. 

California Attorney General Rob Bonta headed the coalition. In a friend-of-the court brief filed last month in the Supreme Court, Bonta and the other attorneys general support the Department of the Interior’s position that parts of a ruling by a federal appeals court in North Texas were wrongly decided.

“The truth is that there has been a long, ugly history in the United States of policies that had the effect of separating Native American children from their culture, families, and communities,” Bonta said in a statement announcing the coalition’s brief in support of the constitutionality of the Indian Child Welfare Act, which became law in 1978. “ICWA is a critical tool for protecting Native American children, their parents, and tribes — and it is under threat. If we are to truly honor the history and legacy of our tribal partners, we must act. Alongside a bipartisan coalition of attorneys general, that’s exactly what we’re doing. We’re urging the U.S. Supreme Court to hear this case and correct the errors the court of appeals made in its decision.” 

ICWA’s provisions safeguard the rights of Indian children, parents and tribes in state child custody proceedings. The law promotes the placement of Indigenous children enrolled in a tribe or eligible for enrollment with members of their extended families or with other tribal homes.

Bonta’s move echoes that of his immediate predecessor, Xavier Becerra, who filed a similar document with the appeals court on behalf of a slightly smaller coalition of 21 states, when he was California attorney general.

The Bonta coalition includes states containing 86% of the federally recognized tribes in the United States: California, Alaska, Arizona, Colorado, Connecticut, Idaho, Illinois, Iowa, Maine, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Utah, Virginia, Vermont, Washington, Wisconsin and the District of Columbia.

The district judge in Texas upheld parts of the Indian Child Welfare Act and ruled others unconstitutional. He ruled that some of the provisions violated the “anticommandeering” doctrine because in his view it improperly commands states to adopt the federal laws. The government, the tribes and the coalition of attorneys general, however, argue that the judge misapplied the doctrine, saying the challenged provisions “validly preempt state law and thus do not violate the anticommandeering doctrine.”

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