By Kimee Wind-Hummingbird
On November 9, 2022, the U.S. Supreme Court heard oral arguments in Haaland v. Brackeen, a case in which the constitutionality of the Indian Child Welfare Act (ICWA) was at issue. This case posed one of the most serious threats to ICWA in decades, as well as threatening to undermine Tribal sovereignty more generally. Ultimately the Supreme Court reaffirmed ICWA’s constitutionality, but the journey toward that decision was a fraught one for many citizens of Native nations and advocates for Tribal sovereignty and self-determination. As we approach the one-year anniversary of those decisive oral arguments, and the 45th anniversary of President Carter signing the ICWA into law, the NCARC asked one of our staff members, Kimee Wind-Hummingbird, to reflect on her experience as part of a national network of ICWA advocates who followed the Brackeen case closely prior to the Supreme Court decision.
Shannon Smith, Anita Fineday, Kimee, and other ICWA Warriors waiting in line at the Supreme Court.
On June 15, 2023, the news finally came. Most everyone I know in Indian Country had been anxiously holding their breath since November 9, 2022, when the U.S. Supreme Court heard oral arguments in Haaland v. Brackeen, the case that threatened to invalidate the Indian Child Welfare Act (ICWA). I opened my laptop that June morning with apprehension, a feeling shared by a lot of my friends and colleagues. We had hope but little confidence that we would get the kind of ruling we were wanting so badly, an opinion affirming the constitutionality of ICWA. Those of us who have been involved in the constant battle to defend and promote our nations’ sovereignty and right to self-determination always hope for the best as we prepare for the worst.
In order to understand why this moment meant so much to me and to other people who work on behalf of our Native nations’ children and families, you need to understand how we got to this moment in history. ICWA was enacted in 1978 to begin the process of remedying more than 100 years of government-sanctioned destruction of Native nations and families, using the separation of our children from their families and communities as a means to the end of getting rid of us as Peoples. This happened first through the removals of children to abusive and traumatizing boarding schools and then, once the boarding school era ended, through a continued governmental campaign of mass removals of our nations’ children from their families by outside agencies.
ICWA was intended to remedy these atrocities and provide the legal framework necessary to prevent unwarranted removals of “Indian children” (as they are defined by law) from their homes. The law’s key features include the establishment of placement preferences prioritizing connection to family and Tribe, as well as a requirement that child protection caseworkers provide “active efforts” to keep children in their homes and connected to their families, communities, and cultures whenever it is safe to do so. This requirement exceeds state laws already requiring “reasonable efforts” to support families. Because of this requirement for a higher threshold of supports, ICWA is widely regarded as the gold standard for child welfare laws.
The battle to defend our families and prevent the unwarranted removal of our children from their homes and Nations didn’t end with the enactment of ICWA, however. Since 1978, year after year, our children have continued to be disproportionately represented in both the foster care and the juvenile justice systems. The practice of excessive removal of our children persists today, often in situations when child welfare professionals do not understand ICWA or the intent behind its passing.
Having worked in Indian Child Welfare since 1999, I know what the fight to ensure that ICWA is correctly implemented looks like in day-to-day practice. I remember one of the first cases that allowed me to see how ICWA can be used to overcome resistance from others in order to reunite children with their families and communities. This case involved a grandmother who lived on a reservation some distance from the city in which her grandchildren were living at the time of their removal. My office, accompanied by our Native nation’s prosecutor, informed the court during regular review hearings that the grandmother was being certified by our nation. Once that process was complete, we would be requesting that the children be moved from their current placement, which was not ICWA-compliant, to their grandmother’s care. When the grandmother was certified and we requested the change of placement, the state resisted, even though this placement was exactly aligned with the spirit and intent of ICWA. Fortunately, the judge was receptive to our arguments and faithfully adhered to ICWA. I will always remember the joy on those siblings’ faces when we drove them to their beloved grandmother’s home just a few short weeks later.
Every time a child is reunited with their family, community, and culture thanks to ICWA, the child benefits from the nourishing connections that come along with this reunification, and the rest of us profit from the child’s presence as a valued member of the community. Each child plays a role in ensuring the survival of our families, communities, cultures, and nations. Conversely, every time a child is denied these relationships with their family, community, culture, and nation, we lose a piece of our future. Without our children, we have no future.
Kimee and Rosa Alvarez in front of the 5th Circuit Court of Appeals in New Orleans.
I recall when I first heard of the Brackeen case. It was late 2017, and I was the Director of the Muscogee Nation’s Children and Family Services Administration, which encompassed the Indian Child Welfare Programs including the State Reunification and Permanency Team that was responsible for monitoring compliance with ICWA. I was in Washington, D.C., at a gathering of Native leaders and ICW Directors supported by the ICW division of Casey Family Programs. At a portion of that meeting reserved for policy updates, an attorney began to discuss the dynamics of this new case, how it posed a real risk to ICWA, and how it was being supported by the State of Texas. The case involved the adoption of a Navajo/Cherokee child by a non-Indian couple. Texas’ challenge to ICWA centered on claims that the potential adoptive couple was being discriminated against because of their race and that, in their opinion, ICWA was ignoring the best interest of the child. There wasn’t much time between this meeting and the upcoming hearing in Texas, but the attorney impressed on us all how important it was that we mobilize support for ICWA quickly.
Those of us present at that meeting did our best to inform as many of the other ICW Directors across the country as we could about this case, as well as Tribal leaders and Representatives. Momentum for the fight grew quickly. The first Tribal amicus brief submitted for the case in the U.S. District Court for the Northern District of Texas was supported by 123 Native nations and was filed on May 25, 2018. I was happy to have played a role assisting with that effort and proud of my nation for being one of the signatories.
That joy didn’t last long. In early October 2018, the District Court opinion held much of ICWA unconstitutional. The judge reasoned that because ICWA allows placement preferences for Native families, the law was based on race.
As every citizen of a Native nation knows, federal Indian law is not race-based. It is based on the unique political status of each sovereign nation. A sovereign Tribe or Native nation determines what is best for its citizens, and in turn, those citizens have certain rights and protections, thanks to their Tribal membership. Tribal sovereignty frequently involves entering into government-to-government agreements with the U.S., with states, and with other sovereign nations. These agreements are based on a recognition that Tribes, as political entities with sovereign powers over, and responsibilities toward, their members, long predated the establishment of the United States and of individual states. ICWA guarantees that Tribal sovereignty is recognized on matters related to our children and families. Protections for children occur based on the legal definition of an Indian child—a definition rooted in eligibility for Tribal membership—rather than on the basis of racial identity.
It is a lack of understanding of Tribal sovereignty and of the political rather than racial definition of the term “Indian” in federal law that we were trying to fight in our ICWA awareness campaign. It was demoralizing, to say the least, to see that the Texas ruling was based entirely on this sort of misconception. If the ruling stood, Native nations might be at risk of seeing their sovereignty threatened in other arenas, too.
In the wake of that opinion, Native nations knew we needed to prepare for a lengthy, high-stakes fight. This was a fight for the literal lives of our children, as well as for the preservation of our communities and nations. We redoubled our efforts to bring people together. There were monthly calls facilitated by national organizations focused on Tribal law and Indian Child Welfare. At most major national Native gatherings of that time, discussion regularly came back to the need to educate the general public about ICWA. Sarah Kastelic and her team at the National Indian Child Welfare Association were hugely influential, as was Dan Lewerenz and his crew at the Native American Rights Fund. At National Congress of American Indians quarterly meetings, I recall many of our ICWA workgroups being almost entirely focused on the Brackeen case.
I also want to note how much of the work of organizing happened at the ground level. As the Director of my Native nation’s ICW Program, I invited our public relations teams to be a part of many of these meetings so they could help with messaging, and of course our Office of Attorneys General were right there with us, staying abreast of the news that came through frequent group emails and calls. The then-Chief of the Muscogee Nation, James Floyd, has always understood the importance of ICWA, and his leadership set the tone for the programs of the nation to stay informed and to continue doing whatever they could to support ICWA. We met often to ensure that any media releases and our public conversations were effective and offered the needed education about ICWA. I know that across Indian Country, the same thing was happening within many other nations.
The coordinated response I saw across Indian Country to educate others was exciting to witness and be a part of. And it paid off. An unheard-of 325 Native Nations came together to join the amicus brief in support of ICWA for the appeal of the Texas ruling, which was heard in March 2019 at the Fifth Circuit Court of Appeals in New Orleans. I traveled there from Oklahoma with a dear friend, a Cherokee ICWA attorney whose personal and professional journeys have both been deeply intertwined with the law and its implementation. She and I felt it was important that we attend. I felt that by being in the courtroom, we would provide a visual reminder to those on the other side of the gallery that our children are loved and that the law impacts real people like us. It was good to see some of the ICWA warriors I had been in meetings with over the last year present in the courtroom, as well.
My friend and I were joined in the front row by another friend, a Navajo attorney who had spent several years working ICWA cases. The fact that the child in this case was both Navajo and Cherokee was not lost on me, especially in that moment. We settled in, not knowing what might take place. We received a glimmer of hope when Judge Priscilla Owen stopped Kyle Hawkins, the Texas Solicitor General who opposed ICWA, mid-sentence when he used the term “our children.” The Judge said, “You used the word ‘your children’. . .They are not your children, necessarily. If they are members of the Tribe, they’re members of the Tribe before they’re your children.”
Hearing those words came as a big relief and gave us some hope that Judge Owen was well versed in ICWA or at least understood Tribal sovereignty. I wanted to shout, “MVTO!” (“Thank you” in Muscogee), but I settled for a low-five with my Cherokee friend on one side and my Navajo friend on the other, discreetly keeping our hands down by the courtroom benches so we wouldn’t draw attention to ourselves. We left those oral arguments feeling optimistic. And we were elated when, in August 2019, the three-judge panel issued their findings that ICWA was not based on race but on the political status of Indian children. This was great news. However, the opinion raised additional questions about ICWA that we knew would have to be decided on appeal, and an appeal would mean that the more basic questions would likely be reopened, too.
So we enjoyed that moment while waiting for the other shoe to drop, and soon enough, it did. The Fifth Circuit opinion was appealed, as we had expected. However, instead of appealing to the U.S. Supreme Court, the plaintiffs requested an en banc hearing in front of all 16 of the Fifth Circuit Court’s Judges. So we dove back into our messaging and information-sharing campaigns, preparing now for the new hearing, scheduled for January 2020. This time, the Tribal amicus brief was supported by 486 Nations.
Again, I felt compelled to be in the courtroom, showing the Judges that Native people care deeply about the protections of our children and families. Admission to the courtroom was tightly limited. A friend made sure to get a ticket for me, and inside, I saw lots of familiar faces. I had a great view of the courtroom and of all the key players, and as the oral arguments progressed, this began to be a source of distress. Watching the body language of some of the judges on the panel, I became convinced that several of them were reacting negatively—shaking heads, folding their arms, falling back into their chairs in disbelief—to any pro-ICWA arguments.
Jack Troupe and Kimee outside the 5th Circuit courtroom.
Also, the line of questioning in this case felt different. Although the attorneys were passionately presenting their arguments, I felt that their key points were not being heard. I specifically remember one of the judges posing a hypothetical question about “Indians” getting special treatment, and she wanted to know if this special treatment would hypothetically apply to situations where Indian people got DUIs. I looked at the Cherokee friend I was sitting next to and whispered, “Did she just say that out loud?” As the attorney who was defending ICWA tried to nudge her back on course, the judge said something that seemed sarcastic about how “the Indians are like the ancient Romans, who carried Roman law with them wherever they went.”i I could only imagine what she was implying, but I felt pretty sure I knew her thoughts on ICWA.
When the pro-ICWA attorney was asked why the state couldn’t decide what was in the best interest of its citizens, his argument ended with the reminder that “from the beginning of the Republic, as the amicus briefs in this case show, from the beginning of the Republic, Indian children have been the subject of policymaking and legislation by the federal government.” That point resonated so strongly with me, I felt a glimmer of hope that it would resonate with the Judges, too. But as I searched their faces, that glimmer quickly faded. I was afraid many of them might have had their minds made up about ICWA before the arguments began.
As we waited for the opinion to be released, the world shut down due to COVID. It wasn’t until April 6, 2021 that we heard from the Fifth Circuit again. It wasn’t all bad, but their opinion did hold that some aspects of ICWA were unconstitutional. Now the big question was whether the case would be appealed to and ultimately decided by the U.S. Supreme Court.
Meanwhile, I had personally moved on from my capacity with the Muscogee Nation to a position with the National Native Children’s Trauma Center. In this new venture, I found myself able to educate people on a national level about ICWA. I talked about how ICWA is based on the political status of a child determined to be an Indian child, as well as about ICWA’s specific requirements about placement preferences and its insistence that the state provide “active efforts” in working with caregivers. My experience continued to be that even when I was talking to very knowledgeable, well-meaning people in fields like child welfare and juvenile justice, there was a need to continue spreading these messages, because not enough people fully grasp them.
As I settled into my new role, the news came that the Supreme Court had granted certiorari and would hear oral arguments in Brackeen. We knew way back in 2018, prior to the first oral arguments in Texas, that the case was going to be pivotal in determining what the future would look like for our families, communities, and Nations. Now it was official: the Supreme Court was poised either to uphold federal Indian law as we knew it, or to undermine it and send shock waves through our families, communities, and nations.
The stakes could not have been any higher, and the dedicated messaging, outreach, and education push continued. When the deadline arrived for submitting amicus briefs in the fall of 2022, an unprecedented 497 Native Nations had joined the brief supporting ICWA.
I traveled to Washington, D.C., to watch the oral argument on this case. I felt like I had come too far and invested too much mental and emotional energy not to be present for this last showing of unity in support of ICWA. Five friends and I—all of us with backgrounds in ICW departments, Tribal leadership, or federal Indian law—gathered on the plaza in front of the Supreme Court building at 5 a.m. on that cold morning in November. The line to attend oral arguments is first-come, first-served, and as the sun came out and others showed up, the line stretched around the side of the building. We enjoyed visiting with familiar faces as we patiently waited to see who would get in. But it was not to be for our group. The line to enter was cut off three people in front of me—they were not allowing anyone else in.
We didn’t have time to dwell on our disappointment, though, because once that part of the morning was over, we got swept up in the pro-ICWA crowd, who were there to show their love and support outside. We had a backup plan, too: we knew that another group of supporters would be listening to the oral arguments together at a local hotel.
The oral arguments went long: three hours instead of two. There were some welcome surprises in terms of the lines of questioning we heard. It was hard to tell from the audio of the oral arguments how much enthusiasm was warranted. It did seem that some of the justices’ questions and comments indicated that they had done their homework and really sought to understand ICWA’s historical context, purpose, and the effects it has on our families and communities. But like I say, we were planning for the worst even as we were hoping for the best.
As the weeks and months passed while we waited for the Court’s opinion, many of us across Indian Country discussed what we would do to pursue the goals embodied by ICWA if the law were to be struck down. One encouraging development was that multiple state legislatures began moving quickly to codify protections for Tribal children and families in the form of state-level ICW laws. Still, there were so many unknowns. The day after the Supreme Court ruling, we knew we would still be doing whatever we could to protect our children and families. But what would that work look like? There was no way to tell.
Flash forward to the morning of June 15, 2023. It all happened at once. At the same time that I pulled up the SCOTUS blog, a popular online forum offering news and analysis related to the Supreme Court of the United States (SCOTUS), and began to read the Brackeen opinion, my phone blew up with texts, emails, and calls from other ICWA warriors. A sudden flurry of emotions overwhelmed me as I tried to read the news stories and respond to the texts: the Supreme Court had upheld ICWA in its entirety!
It took me a while to be able to put that moment into words. In fact, one of the most memorable aspects of that morning was precisely that experience of not having any words to describe what I was feeling. A friend I met doing ICWA work about 15 years ago called me as we both were still digesting the news, and the two of us just sat on the phone in complete silence. Neither of us could formulate any words for quite some time, nor did we need to explain why there weren’t any words. I think about that phone call often, and without a doubt, I will always remember it.
The main expressions I think of now, when I think of that morning, are excitement and relief. Excitement at the fact that what we had hoped would be true seemed to have turned out to be true: if people really make an effort to understand what ICWA is all about, then they will value it the way we do. The reason I felt relief is probably obvious. I have invested my life in this fight, as have so many of the strongest and most generous, loving, and caring people I know.
That was a day for celebration and for celebratory conversations with ICWA advocates. Then Friday morning came, and it was right back to the grind. ICWA survived. That battle has been won for now. But the battle to ensure that ICWA is implemented properly on behalf of our children, families, communities, and nations continues.
The U.S. Supreme Court at 5 a.m.