Amelia Tidwell


The United States has a long and tragic history of removing Native American children from their homes and culture at shocking rates. Congress passed the Indian Child Welfare Act (ICWA) in 1978 in response to that crisis and many states have bolstered the Act with state legislation and tribal-state agreements, but racial disparities are still present in the child welfare system today. Some states with low Native American populations joined non-Native American prospective adoptive parents in a constitutional challenge of ICWA, and hundreds of supporters (tribes, organizations, and states) poured out support for the Act. The Supreme Court heard the case, Haaland v. Brackeen, in November 2022, and both sides await the Court’s ruling on ICWA’s future. This article delves into the history of U.S. child welfare practices and cultural distinctions that played a role in creating and perpetuating the racial disparities to understand the necessity of the Act. It then analyzes the way states have embraced or resisted ICWA to demonstrate states’ preparedness (or lack thereof) to handle Native American child welfare cases should the Supreme Court overturn ICWA. This article argues that, regardless of the Supreme Court’s ruling in Haaland v. Brackeen, states must take steps to address the persistent racial disproportionalities and ensure protections for tribal culture and Native American children in the absence of ICWA. Finally, this article presents three pillars that states must address concurrently to achieve those aims.