Iowa joins 23 states in support of Indian Child Welfare Act

Iowa Attorney General Tom Miller called for the U.S. Supreme Court to reject a challenge to the Indian Child Welfare Act, which protects Native American children from forced removal from their families and tribal communities.

Miller joined 23 other state attorneys general Monday in filing an amicus brief in Harland v. Brackeen. The lawsuit was brought in 2017 by a white Texas couple who attempted adopting a Navajo boy. The Navajo Nation objected to the request on the basis of the Indian Child Welfare Act, ICWA, as a Native family member of the child also wanted to adopt the child.

The ICWA requires preference is given to Native family and tribal members in adoption cases for native children. Lawyers for the Texas family argued that requirement meant the federal law violates the Equal Protection Clause of the U.S. Constitution, by discriminating on the basis of race.

But the defense lawyers, alongside Native American rights activists and the ACLU, say the law’s protections are not on the basis of race. A person’s legal tribal affiliation is political, not racial, they argued. The attorneys general’s amicus brief backs up this argument, and asks the Supreme Court to preserve the ICWA.

“For more than four decades, ICWA has been a crucial tool for protecting the rights of Native American children, their families, and their tribes, and addressing persistent disparities, within Iowa’s child welfare system,” Miller said in a news release. “I am proud to stand alongside our tribal partners in advocating for the preservation of families, the strengthening of indigenous communities, and the safety of our children.”

The law was first passed in 1978, responding to calls that Native American children were disproportionately removed from their homes and from tribal communities without warrant. These removals, according to the amicus brief, sometimes reflected bias against Indian families’ heritage and customs, and posed an “existential threat” to Native American communities.

As of Tuesday, 21 amicus briefs had been filed in the Harland v. Brackeen suit in favor of upholding the ICWA, from tribal organizations to child welfare groups to medical experts, according to a news release from the National Indian Child Welfare Association.

In the federal district court case, the judge found the ICWA unconstitutional. The U.S. Court of Appeals fir the 5th Circuit then reversed the district court decision twice, and it now heads to the U.S. Supreme Court for a final ruling.

The Supreme Court will hear oral arguments on the case in November.