OAH, AHA File Joint SCOTUS Brief in Case Affecting Indigenous Adoption and Family Rights

Bloomington, IN—November 9, 2022—The Organization of American Historians (OAH) and the American Historical Association (AHA) have jointly co-sponsored an amicus curiae brief in the Supreme Court case Haaland v. Brackeen. This brief, based on decades of study and research by professional historians, aims to provide an accurate historical perspective as the court deliberates the constitutionality of the Indian Child Welfare Act (ICWA).

The AHA and OAH support the constitutionality of the Indian Child Welfare Act (ICWA), which was enacted in 1978 with strong support from Native Americans to end the forced removal of Native children from their families. 

By the late 1960s, before the enactment of the ICWA, state and local governments were forcibly removing 25 to 35% of Native American children from their parents. After rejecting jurisdiction over Native children when the federal government tried to transfer that responsibility to the states for the first time in the 1930s, state governments accepted jurisdiction over Native children only when those programs were entirely federally funded. To avoid having to delve into any state welfare funds and to protect their bottom lines, state and local governments placed Native children in non-Native homes, separating them from their families and their nations. The ICWA sought to prevent this policy by strengthening the authority of tribal governments and prioritizing the placement of Native American children with their extended families and tribal communities. 

When the Supreme Court hears Haaland v. Brackeen on November 9, it will consider challenges to the ICWA from the states of Texas, Louisiana, and Indiana, and from individual plaintiffs. The plaintiffs assert that child placement is the right of the states, not the federal government, and that placing Native children with Native families is a form of racial discrimination. But as the AHA and OAH’s brief carefully explains, “ICWA represents the federal government’s latest effort to use its plenary and deeply rooted authority to regulate for the welfare of Indian children.” Considering the historical record in full, the OAH and AHA contend that the challenged provisions of the ICWA should be upheld in full.

If the court strikes down the ICWA in whole or in part, the decision could have devastating impacts on Native American families and, potentially, on federal Indian law writ large. Resuming the practice of Native child removal would cause active harm to Native families as well as jeopardize the future sovereignty of tribal governments. 

The OAH and the AHA hope that the Supreme Court will carefully consider the amicus brief and the historical context that is essential to the adjudication of the important case. 

The brief can be downloaded on the Supreme Court’s website. OAH and AHA staff are available to discuss the statement. For interview requests with the OAH, please contact Elisabeth Marsh at emarsh@oah.org; for the AHA email press@historians.org.