Wyoming advocates applaud Supreme Court's decision to uphold ICWA
June 15, 2023
CHEYENNE — Wyoming advocates pushing to preserve the Indian Child Welfare Act celebrated the U.S. Supreme Court decision issued Thursday.
Supreme Court Justice Amy Coney Barrett delivered the majority opinion that rejected all constitutional challenges to the federal law. Some were based on the merits of the law, while others were for lack of standing, and the high court affirmed the judgment of the U.S. Court of Appeals “regarding Congress’s constitutional authority to enact ICWA.”
Affirming the constitutionality of ICWA was considered a safeguard of “the ability of tribal members to raise their children free from interference by state authorities and other outside parties.”
“Congress exercised that lawful authority to secure the right of Indian parents to raise their families as they please; the right of Indian children to grow in their culture; and the right of Indian communities to resist fading into the twilight of history,” wrote Justice Neil Gorsuch in concurrence. “All of that is in keeping with the Constitution’s original design.”
The ACLU of Wyoming considered the decision a landmark victory for tribal sovereignty and said in a statement released Thursday that it is a “critical law designed to halt horrific government practices that had torn Native families apart and intentionally undermined tribal sovereignty.”
It was also one of 15 ACLU chapters nationwide that filed an amicus brief in the Brackeen v. Haaland case, which argued the plaintiffs’ equal protection challenges should be rejected in an attempt to safeguard Indian families and respect the cultural heritage of Indian tribes.
ACLU of Wyoming legal director Stephanie Amiotte said she believes their efforts influenced the final outcome, along with the hundreds of other amicus briefs filed in support of ICWA.
“Every amicus brief that gets filed has an impact, especially when it comes from an organization like the ACLU or other large organizations that fight for Indigenous justice rights,” she told the Wyoming Tribune Eagle. “And because this uniquely concerns this broader tribal sovereignty issue, we think that it did make a difference.”
Amiotte said the Indian Child Welfare Act establishes basic requirements to protect Native American children from continued forced removal from their families and their tribes, such as state courts having to make active efforts to keep Native families together.
The federal law includes preferences for Native children to be placed within Native homes once they have been forcibly removed from their homes by state welfare agencies, and state courts must notify the child’s tribe once the child is in the state welfare system. She said then the child’s tribe has the right to be involved in the placement process and to intervene or institute its own preferences.
“These placement preferences within ICWA prioritize a child’s relatives, then the child’s tribe, and then another tribal family to preserve the best interests of the Native child,” she said. “The broader concept is that ICWA aims to prioritize Native children in a setting that will keep them closely connected to their culture, their heritage, their language and their Indigenous religions and spiritual practices.”
ACLU of Wyoming still believes there is work to be done following the court’s decision, and officials said there are states that continue to remove Native children from their families at an alarming rate.
Crystal Pardue, staff attorney in the Racial Injustice Program at the American Civil Liberties Union, called on states to pass their own ICWA laws in their legislatures in order to stand with Indigenous governments. Fourteen have already incorporated ICWA protections into their own codes, including Wyoming.
State Sen. Affie Ellis, R-Cheyenne, sponsored a bill titled “Federal Indian Child Welfare Act codification” during the most recent legislative session, which codified the nearly 50-year-old federal law into Wyoming statute.The Senate voted 20-11 to pass the legislation on third and final reading, and the House approved it 39-21-2.
“Wyoming is very committed to enforcing ICWA and realizes that there are definitely benefits of keeping children connected deeply to their communities,” she said.
Ellis said she introduced the bill in case the court decided to invalidate ICWA entirely and to turn federal Indian law on its head. She said they could have waited for the court to issue its opinion, but her greatest concern was what the state would have done in between June and the next legislative session if the decision was not in favor of upholding ICWA.
Although Ellis said she believes there are loving families who would have taken on Indigenous children, she didn’t want the children being improperly placed in non-Indian homes. She said if the process isn’t being followed, then relationships are developed, and it’s unfair to everyone involved.
“What would happen to those kids?” she said. “I didn’t want them falling through the cracks.”
Even though Wyoming has its own codified system following the Indian Child Welfare Act to protect Native families, Ellis said she was very pleased when she read the Supreme Court’s decision Thursday morning. She agreed with the justices that it’s a complicated issue and considers it a sensitive topic because they are talking about one of the nation’s most vulnerable groups.
“This case is about children who are among the most vulnerable: those in the child welfare system,” according to Justice Barrett. “In the usual course, state courts apply state law when placing children in foster or adoptive homes. But when the child is an Indian, a federal statute — the Indian Child Welfare Act — governs.
“Among other things, this law requires a state court to place an Indian child with an Indian caretaker, if one is available. That is so, even if the child is already living with a non-Indian family and the state court thinks it is in the child’s best interest to stay there.”
This story was published on June 16, 2023.