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Janna Farley,

February 21, 2023

House lawmakers will soon consider legislation that would further tribal sovereignty and protect Native children into North Dakota law.

The ACLU of North Dakota supports House Bill 1536.

The Indian Child Welfare Act (ICWA) was passed by Congress in 1978 to address the nationwide epidemic of Native children being discriminatorily removed from their homes by child welfare agencies and placed into non-native homes at disproportionate rates. ICWA requires state courts to make active efforts to keep Native families together, and it applies to children who are citizens or eligible to be citizens of a federally recognized tribe.

Last November, the U.S. Supreme Court heard oral arguments in Brackeen v. Haaland, a case that challenges the constitutionality of ICWA. If the Supreme Court rules ICWA unconstitutional, it could have devastating consequences for Native children, families and tribes while simultaneously putting the existence of tribes in jeopardy.

Because federal ICWA protections are under attack in Brackeen v. Haaland, states need to have legislation in place like House Bill 1536 that recognizes tribal sovereignty and a tribe’s inherent interest in their Indigenous children’s welfare. 

“Tribes have a fundamental right to govern themselves and make decisions on issues that affect their own people — including Native children, who have unique needs based on their culture — without interference from federal or state governments,” said Cody Schuler, ACLU of North Dakota advocacy manager. “Honoring tribal sovereignty like this isn’t about discrimination or race. Rather it recognizes the unique political status that tribes are afforded under the Constitution and other federal laws, including Indian Country laws.”

Even if ICWA survives Brackeen, House Bill 1536 is still crucial to protect tribal sovereignty and Indigenous children in general.

“Indigenous children are vastly overrepresented in the foster care system and are more likely than not to be adopted by non-Indigenous families without connections to their tribal cultures, religion and traditions,” Schuler said. “Children who are adopted or placed into non-Indigenous households lose the critical connection to their Indigeneity they need to withstand the obstacles and challenges they face which are unique to their culture and a by-product of the assimilation policies of the United States that proved so harmful to Indigenous children, families and communities as a whole.” 

About the ACLU of North Dakota

The American Civil Liberties Union of North Dakota is a non-partisan, nonprofit organization dedicated to the preservation and enhancement of civil liberties and civil rights. The ACLU of North Dakota is part of a three-state chapter that also includes South Dakota and Wyoming. The team in North Dakota is supported by staff in those states.

The ACLU believes freedoms of press, speech, assembly and religion, and the rights to due process, equal protection and privacy, are fundamental to a free people.  In addition, the ACLU seeks to advance constitutional protections for groups traditionally denied their rights, including people of color, women and LGBTQ+ and Two Spirit communities. The ACLU of North Dakota carries out its work through selective litigation, lobbying at the state and local level, and through public education and awareness of what the Bill of Rights means for the people of North Dakota.