The Indian Child Welfare Act (ICWA) of 1978, enacted to protect Native American children from being removed from their tribes, was recently upheld in 2023 by the U.S. Supreme Court in Haaland v. Brackeen in the face of considerable challenge. Through analyzing the upholding of ICWA and its ramifications, this Note seeks to examine how greater solutions can be postulated to keep Native children with Native families within the reaffirmed boundaries of the plenary power. Both continual and novel challenges since ICWA’s enactment in 1978 will be discussed. Ultimately, this Note will analyze what specific duty of care and involvement is owed to tribes after decades of policies sought the assimilation and the mass removal of Native children from their homes. These policies may necessitate greater federal support with social services aimed at decreasing the amount of dependency proceedings involving Native children, which remain disproportionately high. ICWA and its progeny will be defined at the onset of this Note and later used to examine what duty the federal government owes to tribes and what role the federal government should have in mitigating the consequences of a centuries-long genocide against tribes. Historical context for why ICWA was enacted will be provided thereafter. Though the Brackeen decision dealt with the legal challenges raised by the petitioners such as federal authority, infringement on state sovereignty, and racial discrimination, the decision does not address the questions and concerns raised by the application of ICWA in dependency proceedings. Currently, the most pressing concern is the unfortunately still high rate of removal of Native children from their families and the exacerbating weight of child welfare systems to manage its own demands.
While this Note will address some of the questions unanswered by the Brackeen decision, the focus of this Note is to discuss the causes and solutions to the complicated factual scenarios that dependency proceedings raise. ICWA is not a panacea, but a tool for Indigenous nations to exercise sovereignty, through being able to keep the children of their nations in their nation. After a discussion of the current enforcement of ICWA, solutions will be laid out that aim to reduce the disproportionate placement of Native children in the foster system and ensure that ICWA is effectively enforced as intended. The lens of sovereignty will frame the arguments for the greater efficacy of ICWA because promoting tribal sovereignty is at the heart of each of these proposed solutions. Maintenance of ICWA remains essential to mitigate the ongoing disproportionate removal of Native children from their homes, but greater measures can be taken by the U.S. government to ease ICWA dependency proceedings. With more uniform enforcement of ICWA throughout the nation, as well as enforcement of ICWA that is cognizant of its history and the ongoing cultural practices and sovereignty of tribes, fewer Native children will be harmed by the foster care system.
To read this Note, please click here: Moving Forward from Brackeen and Solutions for the Greater Efficacy of the Indian Child Welfare Act.