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All Hands on Deck: Perspectives on ICWA and Haaland v. Brackeen

Posted by Manya Snyder | Jun 15, 2023

Authored by Shandiin Herrera and Jeneva Parks, Summer Associates

Shandiin Herrera
Jeneva Parks

Today, we breathe a sigh of relief as the Supreme Court upheld the Indian Child Welfare Act in Haaland v. Brackeen  As summer associates at Rothstein Donatelli tasked with research to prepare for the possibility of a different opinion and, members of indigenous communities ourselves, we have some thoughts.    

In the Navajo culture as adolescents, some of our first teachings are the concepts of k'é and hózhó– relations and beauty. Our identities are intertwined with the integral understanding that we are tied to one another through k'é, and together we embody and promote hózhó in our daily lives and throughout our communities. Every Navajo child grows up with a profound sense of community, of place, and of purpose. This foundation has carried our people through generations of genocide, displacement, and assaults on our culture. It is no secret that Navajo and other Indigenous communities consider our children to be sacred, requiring the utmost respect and protection. After all, it is our children who will be the keepers of knowledge, the healers, and the future leaders of our tribal nations. 

As Congress has expressed, “there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children.” 25 U. S. C. §1901(3). The Indian Child Welfare Act (“ICWA”) was a response to the long history of removal of Indian children from their families vis-á-vis state officials and private parties, and absent state ICWA laws, it is the only protection in place. 

Unfortunately, in our community, too many of our children have been robbed of growing up learning our culture, our language, and what it means to be a proud Diné. Countless relatives continue to struggle with connecting to concepts they should have been surrounded with since birth, k'é and hózhó. The Supreme Court's decision in Haaland v. Brackeen re-affirmed what we have always known to be true, that tribes have the inherent authority to protect, to teach, to love, and to raise our children amongst our people. ICWA not only puts up a shield against the unconscionable removal of babies from tribal communities but stands as a monument to tribal sovereignty. 

At Rothstein Donatelli, we were all hands on deck preparing for whatever SCOTUS's decision might bring. In collaboration with the California Tribal Families Coalition (CFTC) and their Rapid Response Team (RRT), Rothstein's summer associates have been busy researching and drafting model motions to provide immediate resources for continued involvement in Indian child custody proceedings in preparation for a potential loss of all or some parts of the ICWA. We are grateful that this research, for now, is not needed for any urgent purpose. 

But while we commend the Supreme Court's opinion and its reaffirmation of tribal sovereignty, we are also reminded that attacks on ICWA are much deeper than breaking apart Native families. They are an integral part of ongoing efforts to forcibly assimilate Native people. The time is ripe for Arizona to follow in the footsteps of its sister states and pass its own state laws building on the protections embedded in the federal law. 

Rothstein Donatelli partner April E. Olson, along with associates Glennas'ba Augborne Arents and Wouter Zwart, filed an amicus brief in the Haaland v. Brackeen case in support of the ICWA.   Ms. Olson has been doing ICWA work for over 20 years, and we leave you with a comment from her, “while today's opinion ends the years long battle by numerous organizations to take down the ICWA and chip away at long standing federal Indian law precedent, the work is not done.  The reasons for the passage of ICWA still exist today.  Now, we go back to the work of protecting Indian children and preserving families.  Tribes have always protected their children and will do so for generations to come, but today's decision affirms they will continue to have the ICWA as a tool in that fight.”   

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