Iowa

Iowa’s Indigenous communities wary of ICWA Supreme Court challenges

Indigenous communities in Iowa are preparing for the impact of a potential repeal of a long-standing law that protects Indigenous children from being forcibly removed from their families.

On Wednesday, the Supreme Court will hear arguments challenging the constitutionality of the Indian Child Welfare Act (ICWA) in Haaland v. Question Brackeen. The law was introduced in 1978 to address the crisis facing indigenous children who are being separated from their families, tribe and culture.

Before the law went into effect, 25 to 35 percent of Indigenous children were taken from their families by state child protection agencies, according to studies presented to Congress. Of these, 85 percent ended up in non-natives, cutting them off from their tribal gangs.

ICWA should counter this by urging authorities to cooperate with tribes during the custody process and attempt to find homes with local relatives whenever safe and possible.

Jessica Engelking, director of representation for the Great Plains Action Society, said repealing the law would undo decades of work to protect Indigenous children.

“I’m absolutely terrified of going back to a time when our children were simply stolen with impunity. Even more than now,” said Engelking.

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Indigenous communities in Iowa honor children lost to the foster care system each year with a march.

ICWA opponents argue the law discriminates on the basis of race and violates the Fourteenth Amendment’s equal protection clause. But tribes say being native is a political designation, not a racial one. In this way, tribal sovereignty is also at stake in the decision.

Iowa Attorney General Tom Miller, along with 24 other states, filed an amicus brief, asking the court to dismiss the challenges.

Iowa Assistant Attorney General Diane Murphy Smith said changes or the complete repeal of the law would have a tremendous impact on Native communities across Iowa, including their ability to work together and take advantage of the child welfare services offered by the Iowa Department of Human Resources.

“The state doesn’t seem to know what’s best for local children. Their tribes do,” Smith said. “So without that connection, we’re really not going to be able to serve the communities, these native communities and tribes.”

“I’m absolutely terrified of going back to a time when our children were just stolen with impunity.”

Jessica Engelking, Representative of the Great Plains Action Society

Iowa incorporated ICWA into its state code in 2003, but Smith said a federal repeal of the law would leave state legislation open to challenge in court. And it would come just months after Iowa completed its first customary tribal adoption — an initiative that allows adoption without ending parental rights.

Smith said it’s a policy that sets Iowa apart from other states and shows his commitment to keeping Native families together. But if ICWA were cut or eradicated, none of these efforts would be possible, she said.

“Active efforts would go out the door and that would be a big change. I would argue that it would have a devastating impact on our local children and families,” she said.

Indigenous communities are still disproportionately represented in the child welfare system. In October alone, there were 92 active native cases in foster care, according to the Iowa DHS.

For Engelking, this is proof that the racist harms inflicted on indigenous people are having a lasting impact that continues to this day. She said she sees laws like ICWA as essential to working towards justice.

“It feels powerless and scary to think about having a child and having that child taken away from you,” she said.

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