Nessel joins bipartisan coalition in defense of Indian Child Welfare Act protections

The brief highlights the states’ interest in standing up for the well-being of all children, including Native American children, in-state child-custody proceedings.
Michigan Attorney General Dana Nessel
Michigan Attorney General Dana Nessel(Office of the Michigan Attorney General)
Published: Oct. 18, 2021 at 10:48 AM EDT
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LANSING, Mich. (WILX) - Michigan Attorney General Dana Nessel has joined a bipartisan coalition of 26 attorneys general in an amicus brief in support of the United States, along with four federally recognized tribes, in their efforts to uphold critical protections guaranteed under the Indian Child Welfare Act (ICWA).

Filed before the U.S. Supreme Court in Haaland v. Brackeen and Cherokee Nation v. Brackeen, the amicus brief highlights the states’ powerful interest in standing up for the well-being of all children, including Native American children, in state child-custody proceedings.

“The Indian Child Welfare Act is a landmark protection for Native American children, families, and tribes,” Nessel said. “I join my colleagues in urging the U.S. Supreme Court to uphold this critical tool.”

In 1978, Congress enacted ICWA in response to a serious and pervasive problem: State and private parties were initiating state child-custody proceedings that removed Native American children from the custody of their parents and placed them in the custody of non-tribal adoptive and foster homes. This was often without good cause.

The practice hurt children and posed an existential threat to the continuity and vitality of tribal communities. To address this, Congress established minimum federal standards governing the removal of Native American children from their families.

ICWA’s requirements uphold the rights of Native American children, parents, and tribes in state child-custody proceedings, and seek to promote the placement of Native American children with members of their extended families or with other tribal homes.

In the four decades since Congress enacted ICWA, the statute has become the foundation of state-tribal relations in the realm of child custody and family services. Together, the coalition states are home to around 86% of federally recognized tribes in the United States.

In the amicus brief, the coalition asserts that:

  • ICWA is a critical tool for protecting Native American families and tribes, and fostering state-tribal collaboration;
  • The court of appeals incorrectly concluded that several of ICWA’s provisions violate the anti-commandeering doctrine by requiring states to enact laws; and
  • ICWA’s preferences for the placement of Native American children with Native American families and foster homes do not violate equal protection.

Joining Attorney General Nessel in filing this brief are the attorneys general of Alaska, Arizona, California, Colorado, Connecticut, Idaho, Illinois, Iowa, Maine, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Utah, Virginia, Vermont, Washington, Wisconsin, and the District of Columbia.

The brief can be read in full HERE.

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