ABA urges Supreme Court to uphold constitutionality of Indian Child Welfare Act

CHICAGO, Aug. 18, 2022 — In a series of four consolidated cases, the American Bar Association filed an amicus brief today asking the U.S. Supreme Court to uphold the constitutionality of a four-decades-old federal law intended to protect against the separation of Native American families.

At issue is the Indian Child Welfare Act (ICWA), which sets minimum standards for the removal of Native American children from their families and creates a preference, when children are removed, that they be placed with extended family or in Native foster homes. The U.S Court of Appeals for the 5th Circuit struck down parts of the law, holding they violated the 10th Amendment by impermissibly commandeering the states.

The ABA brief sets forth policies adopted by the ABA supporting the rights of Native Americans and recognizing the constitutionality of the ICWA in particular. The brief urges the Supreme Court to uphold the ICWA, asserting that child placement proceedings are not the exclusive province of the states because the federal government has long played a role in child welfare cases, particularly on Native American lands, and that the ICWA builds on existing child welfare laws.

The brief also explains that Congress has the authority to enact such laws and that, within the context of those laws, the treatment of Native Americans as a classification is political rather than racial and, thus, subject to a more lenient standard of equal protection review.

“ICWA plays an important role in protecting children’s and parents’ legal rights to family integrity and due process,” the ABA brief says. “As this court has repeatedly recognized, rights to be free from public and private interference in the relationships between parents and children are among the most cherished rights under the law.”

The U.S. Supreme Court has scheduled the consolidated cases to be heard on Nov. 9. The ABA brief in Haaland v. Brackeen can be found here. The law firm of Hobbs, Straus, Dean & Walker LLP filed the brief pro bono on behalf of the ABA.

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