Abstract
Congress enacted the Indian Child Welfare Act (ICWA) in 1978 to mitigate the catastrophic effects of the federal government’s longstanding policy of forcibly removing Indian children from their families and tribal communities. ICWA has safeguarded Indian children and families for decades by setting minimum standards in state child welfare proceedings to prevent unwarranted removals, support family preservation and reunification, and foster cultural and community connection.
However, ICWA has faced numerous legal challenges since its implementation—often on the theory that the law discriminates against Indian children on the basis of race in violation of the Equal Protection Clause. In 2023, the Supreme Court correctly affirmed the general constitutionality of ICWA in Haaland v. Brackeen. However, the Court declined to reach the equal protection question, leaving ICWA vulnerable to future constitutional challenges that may jeopardize not only the rights of Indian children and families, but also the foundations of tribal sovereignty.
This Note examines the victories and vulnerabilities of ICWA following Haaland v. Brackeen. Specifically, this Note discusses the historical context of ICWA, argues against the notion that ICWA is violative of equal protection, and advocates for its continued necessity to protect Indian children and tribal sovereignty.
Recommended Citation
Mikayla Jones,
Heads Held High and Hands Holding Hope: The Victory and Vulnerabilities of the Indian Child Welfare Act after Haaland v. Brackeen,
103 Neb. L. Rev. 65
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Available at: https://digitalcommons.unl.edu/nlr/vol103/iss1/5