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October 8, 2021

ATTORNEY GENERAL RAOUL DEFENDS INDIAN CHILD WELFARE ACT PROTECTIONS BEFORE THE U.S. SUPREME COURT

Chicago  — Attorney General Kwame Raoul, as part of a bipartisan coalition of 26 attorneys general, today joined an amicus brief in support of the United States and 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’ compelling interest in standing up for the well-being of all children, including Native American children, in state child-custody proceedings.

“Native American children have a right to be placed with extended family members or tribal homes where they can remain connected to their heritage,” Raoul said. “The Indian Child Welfare Act ensures that Native American children have strong support from their extended families and their tribal communities, and I encourage the Supreme Court to uphold this law.”

Congress enacted the ICWA in 1978 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 – often without good cause – and placed them in the custody of non-tribal adoptive and foster homes. That practice harmed 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. The ICWA’s provisions safeguard 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 the ICWA, the statute has become the foundation of state-tribal relations in the realm of child custody and family services. Collectively, the coalition states are home to approximately 86% of federally-recognized tribes in the United States.

In the amicus brief, Raoul and the coalition assert that:

  • The 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 the ICWA’s provisions violate the anti-commandeering doctrine.
  • The ICWA’s preferences for the placement of Native American children with other Native American families and foster homes do not violate equal protection.

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

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