24 attorneys general defend law to prevent ‘unwarranted displacement’ of Indigenous children

Ellen Rosenblum in Oregon and her peers worry that four cases to be heard by the U.S. Supreme Court this fall could topple a federal law protecting Native children

By: - August 31, 2022 4:18 pm

The U.S. Supreme Court will hear four cases this fall that could topple a federal law protecting Native children. (Les Zaitz/Oregon Capital Chronicle)

Democratic Attorney General Dana Nessel of Michigan [and Attorney General Ellen Rosenblum of Oregon] have joined nearly two dozen of their colleagues across the country in arguing that a long-standing federal law protecting Native American adoptees should be upheld.

The 44-year-old Indian Child Welfare Act provides foundational protections guaranteed to Indigenous children, their families and their tribal communities. It was implemented to prevent the unwarranted displacement of Native children, a practice that had previously been widespread in the United States.

But the U.S. Supreme Court is teed up to hear four court cases this fall that could potentially result in the act being toppled or drastically altered. Such a move could have larger implications for tribal sovereignty overall.

“In the four decades since it was enacted, the (Indian Child Welfare Act) has improved the lives of countless Native American children by allowing them to remain in their tribes and communities,” Michigan’s Democratic Attorney General Dana Nessel said in a statement Thursday. “Michigan has its own version of this law, the Michigan Indian Family Preservation Act and I am committed to ensuring that Michigan continues to protect the well-being of Native American children, their parents, and their tribes.”

The amicus brief filed in Haaland v. Brackeen was led by California Attorney General Rob Bonta. The coalition is made up of Bonta, Nessel and the attorneys general of Arizona, Colorado, Connecticut, Idaho, Illinois, Iowa, Maine, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, South Dakota, Utah, Washington, Wisconsin and the District of Columbia.

“The protections afforded by the federal (Indian Child Welfare Act) must be upheld to help preserve the cultural identity of Native American communities. I proudly stand with my colleagues in supporting the constitutionality of this important legislation,” Nessel said.

Haaland v. Brackeen is one of four related cases scheduled for simultaneous hearings before the U.S. Supreme Court this fall. The others include Cherokee Nation v. Brackeen, Brackeen v. Haaland and Texas v. Haaland.

The central issue in the suits is a constitutional question brought by non-Native foster parents in Texas who argue welfare act perpetuates racial discrimination by prioritizing that Native children are placed with Indigenous family members or other members of their tribe.

Other tribal petitioners in Cherokee Nation v. Brackeen include the Oneida Nation, Quinault Indian Nation and Morongo Band of Mission Indians. All argue for act’s continuation, while the state of Texas and the Brackeen family argue against it.

In the amicus brief Nessel signed on to last week, the coalition asserts that the Child Welfare Act is a critical tool for protecting Native children and fostering state-tribal collaboration and the law and its implementing regulations are constitutional, because:

The law is a valid exercise of Congress’ powers over tribal affairs in response to unwarranted removals that imperiled relations with Native American tribes and threatened their existence.  The law’s provisions do not violate the “anti-commandeering” doctrine, which prohibits Congress from issuing direct commands to state governments.The law does not violate equal protection by establishing preferences for the adoptive and foster care placement of the Native children.

The coalition also highlights in the amicus brief that the United States has a long history of unwarranted removals of Indigenous children from their families. That history includes a centuries-long federal policy of placing Native children in Indian residential schools — including some in Michigan — that set out to assimilate them into white culture and strip the children of their tribal identities.

Nessel previously signed on to an amicus brief in October 2021 concerning two of the cases, Haaland v. Brackeen and Cherokee Nation v. Brackeen.

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Laina G. Stebbins
Laina G. Stebbins

Laina G. Stebbins covers the environment, Native issues and criminal justice for the Michigan Advance. A lifelong Michigander, she is a graduate of Michigan State University’s School of Journalism, where she served as founding editor of The Tab Michigan State and as a reporter for the Capital News Service.