ICWA has been labeled the “gold standard” in child welfare practice by a coalition of 18 national child advocacy organizations, and it is still needed in the United States today. While the act has protected Native children in many cases, and the statistics are improving from when it was first enacted in 1978, there is still widespread noncompliance from state courts and systems. Today, Native children are three times more likely to be removed by state child welfare systems than non-Native children. Fifty-six percent of adopted Native children are placed outside their families and communities.
And so, when the Brackeen decision was released, Native communities across the nation rejoiced. In particular, the decision was celebrated by Native attorneys and advocates of ICWA and Tribal sovereignty, not just because it was the best outcome for tribes and Native people, but also because of the amount of work they put into making sure ICWA was protected by the Supreme Court. In many ways, it was an uphill battle and one that was doubtful to be successful. Nevertheless, ICWA advocates persisted, and their tireless efforts were successful.
Members of the American Bar Association (ABA), too, worked to do what they could to help protect ICWA and made some ABA history in the process. Partner at Hobbs, Strauss, Dean & Walker, LLP and ABA Civil Rights and Social Justice Section (CRSJ) Native American Concerns Committee chair, Geoffrey Strommer; assistant professor of law at UCLA School of Law and ABA CRSJ Native American Concerns Committee chair, Lauren van Schilfgaarde; and director of the ABA Center on Children and the Law, Prudence Beidler Carr; and others worked on an ABA amicus brief to the Supreme Court asking the Court to uphold the constitutionality of ICWA. The amicus brief outlined policies adopted by the ABA supporting the rights of Native Americans and recognizing the constitutionality of ICWA specifically. The ABA’s voice being heard on this issue, and in a case with such paramount importance to the entire field of federal Indian law, was a feat for the organization, especially for its members dedicated to Native American concerns. It is the first amicus brief filed by the ABA in support of a Tribal position in an Indian law case heard by the Supreme Court. The ABA is in a prime position to build off this milestone and continue being a champion of Tribal children and Tribal sovereignty.
Ultimately, as ICWA advocates look toward the future of Indian child welfare post-Brackeen, we see the room for improvement that is still needed, acknowledging that our fight has not yet ended. As noted earlier, there is still widespread noncompliance with ICWA in state courts and child welfare systems, and this lack of enforcement of the act must be mediated to lower the percentage of Native children who are displaced from their families and tribes. Additionally, we see that legal organizations, such as the ABA, can do more to advocate for tribes and Native rights. We envision a future similar to Justice Neil Gorsuch’s final words in his concurrence: one in which Native parents raise their families as they please, Native children grow in their culture, and Native communities resist fading into the twilight of history.