Attorney General Ellison urges Supreme Court to protect Native American children and families

Joins bipartisan coalition of 24 AGs in effort to prevent displacement of Native American children from tribal communities

August 22, 2022 [SAINT PAUL] – Minnesota Attorney General Keith Ellison announced today he has joined a bipartisan coalition of 24 attorneys general in filing an amicus brief in Haaland v. Brackeen to urgethe 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). ICWA is a critical framework for managing state-tribal relations that protects the rights of Native American children and prevents the unwarranted displacement of Native American children from their families and tribal communities. In the brief in support of the federal and tribal parties defending ICWA, Attorney General Ellison and the bipartisan coalition highlight the nation’s long history of inequitable removals of Native American children and reiterates the states’ fundamental interest in standing up for the well-being of children in state child-custody proceedings. 

Haaland v. Brackeen (first known as Brackeen vs. Zinke) is the case of a white Texas couple who sued in federal district court in Texas after the Navajo nation intervened under ICWA to object to their attempt to adopt a Navajo child. The district court found ICWA unconstitutional, but the U.S. Court of Appeals for the Fifth Circuit twice reversed the district court. In February 2022, the U.S. Supreme Court agreed to hear the case.  

Attorney General Ellison has a long-standing interest in this case. In January 2019, in his first month serving as Attorney General, he filed an amicus brief urging the Fifth Circuit to reverse the federal district court, which it did. In October 2021, he filed an amicus brief urging the U.S. Supreme Court to take up the case, which it did. 

“Minnesota and America are strongest when all our cultures are respected and affirmed — no exceptions. For more than 40 years, ICWA has been an important way for America to affirm that Native families, culture, and sovereignty matter. I’ve intervened in this case before, and am doing so again, because it’s my job to help everyone live with dignity, safety, and respect — no exceptions,” Attorney General Ellison said. 

Congress enacted ICWA in 1978 to address 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, it also posed an existential threat to the continuity and vitality of Indian 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 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 amicus brief, Attorney General Ellison and the bipartisan coalition argue that:   

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

Attorney General Ellison is joined in the amicus brief by California Attorney General Rob Bonta, who led the coalition, and the bipartisan attorneys general of Arizona, Colorado, Connecticut, the District of Columbia, Idaho, Illinois, Iowa, Maine, Massachusetts, Michigan, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, South Dakota, Utah, Washington, and Wisconsin.