Excerpted From: Julia Gaffney, “The Gold Standard of Child Welfare” under Attack: the Indian Child Welfare Act and Haaland V. Brackeen, 56 Family Law Quarterly 231 (2022-2023) (132 Footnotes) (Full Document Requested)


JuliaGaffneyOur country was built on the systemic erasure of Indigenous persons, their communities, and their culture. While one might consider this erasure a thing of the past--a phenomenon belonging more to colonization or the country's period of Western expansion--many of the legal, social, and political structures in the United States still operate in ways that disparately affect Indigenous communities. One such structure is the child welfare system. In 1978, Congress enacted the Indian Child Welfare Act (ICWA [Indian Child Welfare Act]) to rectify the historic wrongs that the U.S. government has committed against Indigenous tribes, namely the forced removal of Indigenous children from their tribes with the intent to whitewash them and systemically eradicate Indigenous communities.

While ICWA [Indian Child Welfare Act] has made strides in helping repair Indigenous communities and ensuring that the “best interests” of Indigenous children and their tribes are represented in child welfare proceedings, the law's constitutionality is under attack in federal court. Having just been granted certiorari by the U.S. Supreme Court in February 2022, the case Haaland v. Brackeen is the first case in which a federal circuit court struck down ICWA [Indian Child Welfare Act] provisions since the law's enactment. While the outcome of this case is still uncertain, there is legitimate cause for concern that the results of the case will put both ICWA [Indian Child Welfare Act] and the best interests of Indigenous communities at risk. This article explores these risks, provides history and legal context to the discussion of ICWA [Indian Child Welfare Act], and analyzes why this law is fundamental to ensuring the protection of the interests and existence of Indigenous communities.

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ICWA [Indian Child Welfare Act] was intended “to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families ....” However, Haaland v. Brackeen ushers in a new reality--one in which ICWA [Indian Child Welfare Act] could be completely destroyed, or broken apart bit by bit. This would be detrimental for many reasons, but primarily because ICWA [Indian Child Welfare Act]'s work is not done, despite some believing the law has served its purpose. The overrepresentation of Indigenous children in the child welfare system, as well as the disparate treatment they suffer, signifies that tribes are still being robbed of their future in the loss of their children and that Indigenous families are still at the mercy of explicit and implicit biases. Moreover, no legislative action will ever be able to completely atone for the sins of the U.S. government and its repugnant, disturbing, and racist history of systemic Indigenous annihilation. Therefore, the United States needs laws like ICWA [Indian Child Welfare Act], laws that do whatever they can to give back to Indigenous people what this country has been taking from them for centuries. Otherwise, Indigenous erasure will continue, and the United States will remain a colonizer, one that is unworthy of being characterized as a country that champions “liberty and justice for all.”

Julia Hope Gaffney is a J.D. candidate at the Northeastern University School of Law (2023), where she serves as the managing editor of the Northeastern University Law Review. She received her B.A. in English literature and Spanish from Providence College (2020).