As Supreme Court Considers Native American Child Custody Laws, Oregon May Offer Added Protections

The U.S. Supreme Court recently heard arguments in a case challenging provisions of the Indian Child Welfare Act (ICWA). If the Supreme Court decides to alter or reverse the ICWA’s terms, state-level laws in places like Oregon may offer added protections.

The Case Before the Supreme Court

In November 2022, the U.S. Supreme Court heard arguments in Haaland v. Brackeen, a child custody case that focused on the Indian Child Welfare Act (ICWA). 

Brackeen focuses on one particular provision of the ICWA: If a child who is either eligible for or already a member of a federally recognized tribe must be removed from their home, custody should be awarded to another Native family – preferably, one that contains members of the child’s own extended family or their tribe. 

The plaintiffs in Haaland v. Brackeen are non-native families that seek to adopt Native children in Texas. The case consolidates four separate child custody cases, all of which have the same argument: The ICWA’s requirement to place Native children with Native families is unconstitutional. 

The Purpose of the Indian Child Welfare Act

For over two centuries, the official U.S. policy toward Native American child custody focused on severing the ties between Native children and their families, ancestry, and culture. “Indian boarding schools” separated Native children from their families, forced them to learn only English, and taught them only one set of cultural customs – those of the dominant European-based American culture. In other instances, white parents were given custody of Native children instead of the children’s Native parents, even when the child’s birth parents were willing and able to raise their child in a safe, healthy environment. 

The results were a widespread displacement of Native children from their own families, communities, and cultures. Research by the Association of American Indian Affairs revealed that in the 1950s and 1960s, as many as 35 percent of Native children were severed from their families through child custody decisions by courts and government officials. 

In 1978, Congress enacted the Indian Child Welfare Act (ICWA) to push back against these longstanding patterns. The goal of the ICWA was to improve life for Native children. To do so, the Act set safeguards ensuring that child custody decisions weighed in favor of placing Native children within their ancestral communities. 

Harland v. Brackeen challenges the ICWA’s efforts to keep Native children with their families on constitutional grounds. In addition to raising questions about child custody, the case also raises questions about how far the federal government may go to right past wrongs – including wrongs committed by previous generations of the federal government. 

State-Level Laws Regarding Native Child Custody

The plaintiffs in Brackeen prevailed at trial, but they faced challenges in the Fifth Circuit Court of Appeals. The U.S. Supreme Court heard arguments in November 2022 and will likely issue a decision in the spring of 2023.

Brackeen focuses on a federal law, the Indian Child Welfare Act. The case does not directly address whether U.S. states may pass similar laws regarding custody for Native children or other protected groups. To date, several states, including Oregon, have passed laws similar to the ICWA that specifically focus on children who are members or eligible members of federally recognized tribes. 

In 2020, Oregon passed the Oregon Indian Child Welfare Act (ORICWA). The ORICWA sought to clarify certain aspects of the federal law as they applied in Oregon. The ORICWA thus focuses on child custody issues as they relate to the state’s nine federally-recognized tribes, as well as the efforts of state and private agencies. 

To implement the ORICWA, Oregon’s various state agencies partnered with tribal advocates for education, training, and restructuring efforts. The result has been better communication during affected custody cases and more success at ensuring that Native children have safe, healthy homes within their extended families and tribes. 

The ORICWA has improved Oregon’s overall efforts to keep Native children with their extended families and communities. Should the U.S. Supreme Court decide to alter or overrule the federal Indian Child Welfare Act, laws like ORICWA may become the primary method by which child custody disputes involving federally-recognized tribes are handled in the various US states.

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