June 15, 2023

The amicus curiae brief jointly sponsored by the OAH and American Historical Association was cited in the US Supreme Court’s June 15 decision in Haaland v. Brackeen upholding the Indian Child Welfare Act (ICWA). Justice Neil Gorsuch cited the amicus brief in his concurrence.

The amicus brief, based on decades of study and research by professional historians, aims to provide an accurate historical perspective as the court deliberates the constitutionality of the Indian Child Welfare Act (ICWA). In it, the OAH and AHA support the constitutionality of the Indian Child Welfare Act (ICWA), which was enacted in 1978 with strong support from Native Americans to end the forced removal of Native children from their families. 

As stated in the amicus brief, “The OAH is committed to the principle that the past is a key to understanding the present, and has an interest—as a steward of history, not as an advocate of a particular legal standard—to ensure that the Court is presented with an accurate portrayal of American history and traditions.”

By the late 1960s, before the enactment of the ICWA, state and local governments were forcibly removing 25 to 35% of Native American children from their parents. After rejecting jurisdiction over Native children when the federal government tried to transfer that responsibility to the states for the first time in the 1930s, state governments accepted jurisdiction over Native children only when those programs were entirely federally funded. To avoid having to delve into any state welfare funds and to protect their bottom lines, state and local governments placed Native children in non-Native homes, separating them from their families and their nations. The ICWA sought to prevent this policy by strengthening the authority of tribal governments and prioritizing the placement of Native American children with their extended families and tribal communities. 

As the AHA and OAH’s brief carefully explains, “ICWA represents the federal government’s latest effort to use its plenary and deeply rooted authority to regulate for the welfare of Indian children.” Considering the historical record in full, the OAH and AHA contend that the challenged provisions of the ICWA should be upheld in full.