Federal Supreme Court to hear ICWA arguments on difference between race and tribal affiliation

On Wednesday, November 9, the U.S. Supreme Court will hear orally arguments regarding the Indian Child Welfare Act (ICWA). The ICWA was enacted in direct response to the federal government’s forced assimilation policies. As a result, many Indian children lost connection with their culture due to boarding schools and large numbers were taken from their families and placed in non-Indian households.

The federal case asks whether race should be considered when placing an Indian child in a new home. But the law isn’t written with race in mind, it’s written for benefit children who are members of a tribal nationand to involve the tribes in the placement of these children.

Stephanie Amiotte (Oglala Lakota Sioux), legal director of the American Civil Liberties Union in the Dakotas and Wyoming, said that because Indian tribes are political nations, if the ICWA were overthrown, it would have lasting consequences.

“It would cast doubt on the ability of Congress to negotiate and deal with the tribes as guaranteed by the Constitution,” Amiotte said. “And that would just have a huge impact on all of Indian law in the United States.”

ICWA advocates say race and tribal affiliation are different things, and if overturned, the Federal Court will complicate decades of already established Indian law and weaken tribal sovereignty.

Amiotte said ICWA is meant to mend cultural ties severed by the federal government’s forced assimilation efforts, such as residential schools.

“There have been atrocities that have happened in federally funded and mandated boarding schools, often, that are run by Catholic churches, other religious sects,” Amiotte said.

The Department of the Interior released a report earlier this year outlining about 50 boarding school cemeteries and identifying about 400 federally supported schools where Indian children were expected to assimilate into American culture.

In Wyoming, at an October tribal committee meeting in Laramie, a bill was passed by the committee to start a task force to get a state ICWA law enacted. A preventative measure in case the federal law is overturned in the spring of 2023.