Haaland v Brackeen – ICWA before the Supreme Court

Haaland v Brackeen – ICWA before the Supreme Court


reposted with slight edits from the blog of Robert Latham, a law professor and former GAL in Florida

One of the big topics in foster care across America this year was the June release of the Supreme Court opinion in Haaland v. Brackeen, the U.S. Supreme Court case challenging ICWA. Literally everyone predicted that the Supreme Court would chip away or completely erase ICWA, but seven of the nine people who actually mattered had other thoughts.

You can read the full opinion here. The concurrence by Justice Gorsuch goes into the history of why we have ICWA. It should be required reading for anyone working in the foster care system. The words “child protection” have been used to describe really awful things, both at the state and personal level. The concurrence starts on page 43 of the pdf.


You can also check out This Land, a podcast on the case, history, and personal impact of forced child removal in Native communities.

The foster care system in America is heavily shaped by past Supreme Court decisions and can be changed by future decisions. Here are some other discussions of recent important decisions for child welfare in the US Supreme Court.

Amy Coney Barrett and the fate of Native adoption law (Commentary)

Indian Country Today – October 12, 2020

President Donald Trump’s nominee for the U.S. Supreme Court, Judge Amy Coney Barrett, is raising red flags for supporters of a federal law designed to preserve Native American families and culture. The Indian Child Welfare Act is not currently before the nation’s top court, but there is a very real possibility it could end up there. The constitutionality of the 1978 law – which aims to keep Native American children from being adopted or placed in foster care outside their families, tribes or Indian Country – is being considered by a federal appeals court in New Orleans.


Ginsburg’s Child Welfare Legacy: Attention to Parental Rights

Imprint – October 12, 2020

The late Justice Ruther Bader Ginsburg had many gifts, one of which was using language to convey the harsh impact of the law on those living on the margins. Consider her words in M.L.B. v. S.L.J, in which she authored a majority opinion requiring states to provide parents with free transcripts in termination of parental rights (TPR) appeals.


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