NIWRC's Statement on Haaland v. Brackeen, Indian Child Welfare Act (ICWA)


Media Contact:


(LAME DEER, Mont., June 16, 2023)—The National Indigenous Women’s Resource Center (NIWRC), the STTARS Indigenous Safe Housing Center (STTARS), and one of our organizational partners, Futures Without Violence, celebrate the U.S. Supreme Court’s decision yesterday in Haaland v. Brackeen. The Court affirmed the constitutionality of the Indian Child Welfare Act (ICWA) by a vote of 7-2.

"In the face of continuing colonization, historical trauma, and the persistent efforts to dismantle ICWA and challenge Tribal sovereignty, American Indian and Alaskan Native (AI/AN) families demonstrate deep resilience, rooted in our culture, traditions, ceremonies, and language," said Lucy Simpson, Executive Director of NIWRC. "It is imperative that we persevere in upholding ICWA to safeguard the future of Indian Nations and protect the well-being of the next seven generations."

Through our VAWA Sovereignty Initiative, the National Indigenous Women’s Resource Center and our general counsel, Mary Kathryn Nagle, along with co-counsel Sarah Deer and Shoney Blake, filed an Amicus Brief in this case. NIWRC’s brief was joined by eighty-eight victim advocacy, legal services, religious, and children’s rights organizations that share the NIWRC’s commitment to end domestic violence, rape, sexual assault, and other forms of violence against Indian women and children in the United States, which stated in part:

“...declaring ICWA to be unconstitutional would significantly impede the ability of Tribal Nations to protect their women and children and would result in increased levels of violence against the population whose safety Congress intended for ICWA to serve.”

“The Supreme Court’s decision in Haaland v. Brackeen is a resounding victory for Native children and the Tribal Nations that seek to protect them,” states NIWRC general counsel Mary Kathryn Nagle. “But we have more work to do to ensure the safety of our children and families. Our victory in this case will become meaningless if Congress does not address the Supreme Court’s 2022 decision in Oklahoma v. Castro-Huerta. Just one month ago, the Oklahoma Supreme Court cited Castro-Huerta as a basis for overriding the plain language of ICWA and eliminating the right of Tribal Nations to adjudicate ICWA cases on reservation lands. While we must all take time to celebrate today’s victory in the U.S. Supreme Court, we must remain focused on addressing the harmful consequences of Castro-Huerta.”

ICWA has long been the gold standard in child welfare, recognizing the unique best interests of Indian children to include their social, political, and cultural needs. As Justice Gorsuch points to in his concurrence, ICWA was an intentional redress for intentional long-standing genocidal acts of state violence. Prior to its passage, by 1978, 25-35% of all Indian children had been removed from their homes by state child welfare workers and private adoption agencies, even when fit relatives were available and willingOver 85% of those children were placed into non-Indian homes. This destructive practice had a lasting impact on the social, cultural, political, and spiritual connections of Indian children essential to their psychological safety and well-being, and for the continued existence of Tribal Nations. The practice of separating Indian children from their families and communities through the child welfare system continued, albeit shifted, the trauma and tangible practice of genocide through the implementation of Indian Boarding Schools.

While we celebrate the decision of the Court today,  we must remain vigilant in our efforts to protect the rights of Indian children, Indian families, and Tribal Nations. By choosing to address the Plaintiffs’ equal protection argument via their clear lack of standing rather than ruling on the merits regarding their constitutionality claim, the Court has left it open for future litigants with standing to raise it. Therefore, we will continue to call attention to the origin of this suit: repeated attempts to erode Tribal sovereignty for the purpose of opening up Tribal land for oil and gas permitting, for non-Native gaming clients of certain conservative thinktanks and law firms, and for non-Indian people who feel entitled to Indian children.

Even still, we have high hopes. As Justice Gorsuch stated in his concurring opinion,”Often, Native American Tribes have come to this Court seeking justice only to leave with bowed heads and empty hands. But that is not because this Court has no justice to offer them. Our Constitution reserves for the Tribes a place—an enduring place—in the structure of American life. It promises them sovereignty for as long as they wish to keep it.” 

We are committed to continuing our work in addressing the intersection of gender-based violence and child well-being in our Nations through upholding and strengthening Tribal sovereignty.