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Attorney General Josh Stein Urges SCOTUS to Protect Native American Children

For Immediate Release:
Friday, August 19, 2022

Contact: Nazneen Ahmed
919-716-0060

(RALEIGH) Attorney General Josh Stein today filed a friend-of-the-court brief in Haaland v. Brackeen urging the U.S. Supreme Court to reject a challenge to longstanding protections guaranteed to Native American children, their families, and tribal communities under the Indian Child Welfare Act (ICWA).

“Protecting our kids is job one for the state,” said Attorney General Josh Stein. “The Indian Child Welfare Act helps protect Native American children and families from traumatic separations that harm families and communities. This law should be upheld, and I hope that our Supreme Court chooses to protect children.”

Congress enacted ICWA in response to a serious and pervasive problem: State and private parties were initiating state child-custody proceedings that removed Native American children from the custody of their parents — often without good cause — and placed them in the custody of non-tribal adoptive and foster homes. That practice not only harmed children, their families, and their tribal communities, but it also posed an existential threat to the continuity and vitality of tribes. To address this, Congress established minimum federal standards governing the removal of Native American children who are members of federally recognized tribes, or eligible for such membership, from their families. ICWA’s provisions safeguard the rights of Native American children, parents, and tribes in state child-custody proceedings, and seek to promote the placement of Native American children with members of their extended families or with other tribal homes. The law’s approach is tailored to the unique status of Native Americans as a separate people with their own political institutions. In the more than four decades since Congress enacted ICWA, the statute has become the foundation of state-tribal relations in the realm of child custody and family services.

In their brief, Attorney General Stein and 23 other bipartisan attorneys general support the federal and tribal parties defending ICWA. The coalition highlights the nation’s long history of removing Native American children from their homes and reiterate that the state should stand up for children’s well-being in state child-custody proceedings. The coalition asserts that the ICWA:

  • Is a critical tool for protecting Native American children and fostering state-tribal collaboration;
  • Is a valid exercise of Congress’s powers over tribal affairs in response to unwarranted removals that threaten the existence of Native American tribes;
  • Does not violate the “anti-commandeering” doctrine, which prohibits Congress from issuing direct commands to state governments; and
  • Does not violate equal protection through preferences for the adoptive and foster-care placement of the Native American children to whom it applies.

Attorney General Stein is joined in filing this brief by the Attorneys General of California, Arizona, Colorado, Connecticut, the District of Columbia, Idaho, Illinois, Iowa, Maine, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, South Dakota, Utah, Washington, and Wisconsin.

A copy of the amicus brief is available here.

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