Jamie Miller (University of Virginia (UVA) School of Law) has posted Haaland v. Brackeen: Supreme Court Saves ICWA, but Indigenous Child Welfare Still at Risk (Virginia Journal of Social Policy and the Law, Vol. 30, 2023) on SSRN. Here is the abstract:
In 2023, the Supreme Court issued a decision in Haaland v. Brackeen. Brackeen presented a rare facial challenge to the Indian Child Welfare Act (“ICWA”), which Congress passed in response to years of forced removal of Indigenous children from tribal nation communities through adoption and foster care. The Act provides a framework that gives heightened protection — for example, requiring states to undertake “active efforts” to reunify Indigenous families — to Indigenous children in child custody proceedings. This Note begins by providing a brief overview of the Court’s decision in Haaland v. Brackeen and the vulnerabilities for future challenges left by the Court’s decision. It then argues that the decision in Brackeen was normatively good for Indigenous child welfare. This Note concludes by providing a practical guide for judges and practitioners to enforce a culturally competent adjudication of child welfare proceedings under both ICWA and the state best interests test, should ICWA be overturned.