The high stakes in a Supreme Court case about American Indian children


A Native American woman kisses her daughter, a foster child, in Arizona on November 2. Joshua Lott/Washington Post via Getty Images


For much of its history, the United States pursued a kind of cultural genocide against American Indians. American Indian children were often rounded up and sent to boarding schools, where Native children were forced to abandon their language and customs and to learn to behave like white Americans. Often, the architects of this policy were quite explicit about their goals — as the founder of one of these boarding schools said in 1892, “all the Indian there is in the race should be dead. Kill the Indian in him, and save the man.”


Some of these boarding schools continued to operate well into the 20th century. There are people alive today who attended them.


In response to this history, and 20th-century policies by state governments that also separated American Indian children from their culture, Congress enacted the Indian Child Welfare Act (ICWA) in 1978. Among other things, this law provides that, if a state court determines that a child who is either “a member of an Indian tribe” or “is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe” must be removed from their home, then the child should be placed with an American Indian family — and, if possible, a member of the child’s extended family or, at least, their own tribe.


(Federal law uses the term “Indian” to refer to Indigenous nations and their citizens, and this term has a distinct meaning that is different than the definition of the term “Native American.” This piece includes quotes and legal references that also use the former terminology.)


Nearly half a century after the ICWA became law, the Supreme Court is now hearing four cases, all consolidated under the name Haaland v. Brackeen, which claims that this anti-genocidal law is unconstitutional. The law is being challenged by non-Indian families who wish to adopt American Indian children, along with the