"Magic Words" "Magic Broth" and Indian Law Stories Connected to Brackeen v Haaland

Abstract

The Indian Child Welfare Act of 1978 aims to increase the likelihood that Indigenous children and those eligible to be enrolled in a Native Nation who face foster care or adoption will stay in their communities. The law was created in response to the long history of separation of children from their families and communities. A quote from the Congressional hearing in 1978 emphasized the loss: "The wholesale separation of Indian children from their families is perhaps the most troubling and destructive aspect of American Indian life today. Surveys of States with large Indian populations conducted by the Association on American Indian Affairs (AAIA) in 1969 and again in1974 indicate that approximately 25-35 percent of all Indian children are separated from their families and placed in foster homes, adoptive homes, or institutions." (Establishing Standards, 1978, p. 9) ICWA was established in Federal Indian policy through plenary power, trust responsibility, and treaties (Indian Child Welfare Act, 1978). Fast forward to 2022, Judd Stone, an anti-ICWA lawyer for the State of Texas, during the oral arguments in the Brackeen v. Haaland consolidated cases, deviates from Federal Indian policy. In an exchange with Justice Gorsuch, Stone points to the racial identity of the Indian child as one of the central premises for the law and questions whether ICWA falls within the parameters of Congressional plenary power.