Why I don’t like the U.S. Supreme Court’s Decision in Haaland v Brackeen
The only downside to the U.S. Supreme Court decision issued recently in Brackeen is it keeps the status quo. We are still faced with “state’s choice” and tribal courts are not guaranteed first and center. as forums.
ICWA seemed to improve things after its passage in 1978 when the extent of separating Native children from their homes and communities was unabated. What appeared as success was only appearance. The ICWA system was not truly designed to be successful in achieving the stated goal of keeping tribal children (or eligible for tribal membership) in their communities. ICWA could not succeed as a stand-alone remedy to heal Native homes and communities devastated by colonialism — the lies and related abuses. What was needed was a holistic approach.
Instead, during Clinton’s Administration, the federal government started to give lucrative incentives to state governments to adopt out children that have been in the foster care system between 18–24 months with CASH. These financial incentives encouraged adoption and discouraged reunification efforts. It is a fact Native children are four times more likely to be placed in foster care and subjected to out-of-home placements at the first court appearance than non-Native children. In other words, many states take jurisdiction over Native children more often than they take authority over non-Native children. I believe the federal financial incentives and dubious increased levels of exertion of jurisdiction by states explain why adoption rather than reunification is more likely to occur once state jurisdiction triggers!
I have written on this topic and have suggested an alternative solution that actually is embedded in ICWA. That is when the parent or Indian custodian can demand the child’s return. This scenario would only occur when a pre-filed, and completed voluntary child guardianship is on file. The reason why voluntary legal guardianship is carved out is that the dominant society uses it and other estate planning tools which can be written to specificity (e.g. when is it triggered and when it ends or whether it is temporary/permanent). Tribes with well-established tribal courts can assist tribal families in preparing and making provisions for Native children’s placements before it is needed or may be justified under the lens of the Indian Child Welfare Act.