Attorney General Herring defends Indian Child Welfare Act protections before U.S. Supreme Court

RICHMOND (October 8, 2021) – Attorney General Mark R. Herring has filed an amicus brief supporting the United States and four federally recognized tribes in their efforts to uphold critical protections guaranteed under the Indian Child Welfare Act (ICWA). Attorney General Herring and a bipartisan coalition of 26 attorneys general filed the amicus brief before the U.S. Supreme Court in Haaland v. Brackeen and Cherokee Nation v. Brackeen. The brief highlights the states’ compelling interest in standing up for the wellbeing of all children, including Native American children, in-state child-custody proceedings.

“Since its passage more than 40 years ago, the Indian Child Welfare Act has been a critical tool for protecting Native American tribes and keeping Native American families together, and it has also helped to foster tribal-state collaboration,” said Attorney General Herring. “Every single child deserves to be protected, especially during child-custody proceedings, and it’s crucial that protections like the ICWA remain in place to do just that. I am proud to stand with my colleagues in support of the Indian Child Welfare Act and maintaining these crucial protections for Native American children and their families.”

Congress enacted ICWA in 1978 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 harmed children and posed an existential threat to the continuity and vitality of tribal communities. To address this, Congress established minimum federal standards governing the removal of Native American children 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. In the 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. Collectively, the coalition states are home to approximately 86% of federally recognized tribes in the United States.

In the amicus brief, the coalition asserts that:
• ICWA is a critical tool for protecting Native American families and tribes, and fostering state-tribal collaboration;
• The court of appeals incorrectly concluded that several of ICWA’s provisions violate the anti-commandeering doctrine; and
• ICWA’s preferences for the placement of Native American children with other Native American families and foster homes do not violate equal protection.

Joining Attorney General Herring in filing today’s amicus brief are the attorneys general of Alaska, Arizona, California, Colorado, Connecticut, Idaho, Illinois, Iowa, Maine, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Utah, Vermont, Washington, and the District of Columbia.