By Catherine Hamilton and Jake Romero
OAKLAND, CA — The state of California filed an amicus brief this past week that expresses support for the Indian Child Welfare Act (ICWA). The full amicus brief can be found here.
The brief was filed in Haaland v. Brackeen and Cherokee Nation v. Brackeen, two pending petitions to the U.S. Court of Appeals for the Fifth Circuit.
Congress introduced the ICWA in 1978 because state child-custody proceedings separated Native American children from their tribes and placed them with non-Indian adoptive and foster families, according to the brief.
The act’s provisions protect the rights of Native American families in state child-custody proceedings by giving custody of Native American children to extended family or other tribes.
The brief, drafted by California Attorney General Rob Bonta and 25 other attorneys general, states that “ICWA’s provisions safeguard the rights of (American) Indian children, parents, and Tribes in state child-custody proceedings, and seek to promote the placement of Indian children with members of their extended families or with other tribal homes.”
Haaland v. Brackeen and Cherokee Nation v. Brackeen challenge the Court’s 2018 ruling, that parts of the ICWA are unconstitutional, in the lawsuit Brackeen v. Haaland.
The 2018 decision ruled in favor of Chad and Jennifer Brackeen — a white Evangelical couple from Texas — who adopted their Navajo-Cherokee foster son, according to The New York Times.
The amicus brief argues that “ICWA is a critical tool for protecting Native American families and tribes and fostering state-tribal collaboration.” It also claims that the Court was incorrect in their ruling because the ICWA does not violate the anti-commandeering doctrine or equal protection.
Eighty-six percent of federally recognized Indian tribes are located in the multiple states that collaborated on the brief, according to a press release from AG Bonta’s office.
“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,” said Bonta. “If we are to truly honor the history and legacy of our tribal partners, we must act.”
The attorneys general that joined Bonta in filing the brief are from 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.