Yesterday the United States Supreme Court issued an opinion in Haaland v. Brackeen, upholding the Indian Child Welfare Act (ICWA). The 7-2 ruling solidifies that ICWA remains intact and must be followed by state courts.
ICWA was enacted by Congress in 1978 out of concern that an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies. The protections provided by ICWA apply when a child is a member of a federally recognized Native American Tribe or when a child is eligible for membership and has a parent who is a member of a Tribe. ICWA requires that certain standards apply to help ensure Indian children stay with their parents or are placed in other homes that reflect the unique values of Native culture. Many of these standards have been described as the “gold standard” in child welfare practices. They are declared by law to not only protect the best interests of Indian children but also promote the stability and integrity of Native American families and Tribes. ICWA also allows the children’s Tribe to participate in the court proceedings at any time in the case.
Legal Aid of Nebraska has fought for decades to protect the rights of Native American families and Tribes under ICWA. We are proud that one of our cases, In re Guardianship of Eliza W., handled by Jon Seagrass, Managing Attorney of Legal Aid of Nebraska’s Native American Program, was cited in support of ICWA in the Brackeen opinion.
“ICWA is a vital federal law requiring that Native American voices play a central role in raising and caring for Native American children,” said Seagrass. “ICWA leads to better outcomes for Native American children and protects the stability and sovereignty of Native American tribes.”
In the lead-up to today’s decision, Legal Aid of Nebraska was proud to sign on to the National Indigenous Women’s Resource Center’s amicus (friend of the court) brief in support of ICWA. Today’s decision will ensure ICWA will continue to benefit Native American children and tribes for generations to come.”
Legal Aid of Nebraska’s cases involving ICWA:
In re Guardianship of Eliza W., 304 Neb. 995 (2020)
Protects the rights of Native American children and families by holding private guardianship proceedings qualify as a “foster care placement” for purposes of ICWA and NICWA.
In re Int. of Shayla H., 289 Neb. 473 (2014)
Protects the rights of Native American children and families by holding that at any point in an involuntary juvenile proceeding involving an Indian child at which a party is required to demonstrate its efforts to reunify or prevent the breakup of the family, the active efforts standard applies.
In re Int. of Jayden D., 21 Neb. App. 666 (2014)
Protects the rights of Native American children, families and tribes by holding a foster placement proceeding and a subsequent termination of parental rights proceeding involving an Indian child are separate and distinct proceedings under both ICWA and NICWA, for purposes of determining whether good cause exists to deny a motion to transfer the proceeding to the tribal court on the grounds that the state court proceedings are at an advanced stage.
In re Enrique P., 19 Neb. App. 778 (2012)
Juvenile courts must make an explicit written finding of good cause for deviating from the ICWA placement requirements.
In re Int. of Shayla H., 17 Neb. App. 436 (2009)
The State is required to allege facts with regard to ICWA requirements. The State is required to plead active efforts by the State to prevent the breakup of the family, and allege facts with regard to ICWA requirements that set forth guidelines for courts to follow in involuntary proceedings. Evidence that serious emotional harm or physical damage to the Indian child is likely to occur if the child is not removed from the home must be established by qualified expert testimony provided by a professional person having substantial education and experience in the area of his or her specialty, pursuant to ICWA.
In re Int. of Walter W., 14 Neb. App. 891 (2006)
Protects the rights of Native American children and families by finding state’s alleged failure to notify child’s Indian tribe of termination of parental rights proceedings as required by statute requiring vacating of order of termination.
In re Int. of Bird Head, 213 Neb. 741 (1983)
Protects the rights of Native American children in foster care placements by requiring compliance with the placement preferences under ICWA.
