On June 15th, 2023 the United States Supreme Court upheld ICWA as constitutional. You may also see this decision labelled as Haaland v. Brakeen. The majority opinion wrote that the law was constitutional and protected the rights of Native children. But what is ICWA? How did it come about? And what does this ruling mean for child welfare going forward?
ICWA or the Indian Child Welfare Act is a law designed to protect Indigenous children so they have the ability to observe any cultural traditions they have. It was first signed into law in 1978 by the United States congress. This law was put in place to protect and enshrine the ability of Native children to be attached and integrated in their communities or origin. ICWA states that when an Indigenous child is removed from their home their placement has to be with family, then with members of the same tribe if their is no extended family members, then with members of another tribe if there are no tribal members available to take the child. This is to continue a child’s ability to be integrated in their own culture and community. Another aspect of ICWA is to provide “active efforts” to Native families. This means providing services within in a certain time frame, including the tribe on decisions involving the family, and including parents in decisions when it comes to their child’s cultural practices, as well as other casework aspects.
Secondly, ICWA is designed specifically to combat the effects of Boarding Schools, Industrial Schools, and placements that do not allow children to honor their culture. Historically, Indigenous children were removed and placed outside their community more often than other children.
In Michigan ICWA was codified in state law through was 2012 Public Act 565, which created the Michigan Indian Family Preservation Act (MIFPA) in 2013. In addition to ensure ICWA standards in Michigan, MIFPA goes beyond the ICWA standards to ensure that there are protections for indigenous children and families in both the juvenile and family court systems.
What does this mean going forward? The rights of Indigenous children will continue to be abided by and honored. Supreme Court Justice Gorsuch has a quote that best underscores what this means for the future of families -