The abolishment of a fundamental right in the recent Dobbs v. Jackson Women’s Health Organization decision sent a shock through communities across the country, including Indian country. Abortion access specifically, and reproductive health generally, has always been limited for Indigenous people. The Dobbs decision will make it worse.
In her forthcoming article, The Indian Child Welfare Act as Reproductive Justice, Professor Neoshia Roemer considers the impact of Dobbs alongside the potential gutting of the Indian Child Welfare Act (ICWA) in Brackeen v. Haaland. She shrewdly notes that limited access to reproductive healthcare without protections for Tribal rights puts Indian children and Indigenous cultures in jeopardy.
ICWA was passed in 1978 in response to “an alarmingly high percentage of Indian families [] broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and [] an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions.”
ICWA provides Tribes sole jurisdiction over Indian child custody proceedings when a child resides in Indian country; is domiciled in Indian country; or is a ward of a Tribal court. Tribes have concurrent jurisdiction, alongside states, in all other instances. In state court proceedings, ICWA provides substantive and procedural safeguards to ensure that Tribes have a voice in proceedings, to prevent the breakup of Indian families, and to ensure placement preferences. These placement preferences include members of the child’s extended family; other members of the Indian child’s Tribe; and other Indian families.
ICWA has increased Tribal participation in Indian child custody proceedings and prompted placements that support Indigenous communities and Tribal sovereignty. ICWA’s progress has been challenged in numerous cases, the most urgent being Brackeen v. Haaland, which is set for Supreme Court oral arguments in November.
In Brackeen, petitioners challenged ICWA’s placement preferences on the basis that they are race-based preferences that violate the Equal Protection Clause, among other arguments. The Fifth Circuit rejected the petitioners’ challenge and the Supreme Court has granted cert. The Brackeen decision will be argued only months after the Dobbs opinion was released. It is this intersection that Professor Roemer explores.
Professor Roemer describes how family regulation, distinct from child welfare, has been used as a tool by the federal government in colonizing Indigenous communities. Examples include Indian boarding schools, Indian adoption programs, and the forced sterilization of Indian women.
She concludes that reproductive rights are inextricably tied to family regulation for Indigenous communities. Protecting reproductive rights means protecting Indigenous families through ICWA. She couldn’t be more right.
The abolishment of abortion care as a constitutional right will make it even harder for Indigenous people to access this care which, in turn, can lead to more pregnancies. Brackeen puts the protection of Indian families in jeopardy. There is a clear thread between Dobbs and Brackeen. The Dobbs decision specifically cited to a federal study regarding the nonexistent “domestic supply of infants” and the role of adoption as a suitable alternative to abortion. How troubling that a case that may increase the “supply of infants” will be heard by the Supreme Court on the heels of Dobbs.
Professor Roemer rightly frames ICWA as an issue of reproductive justice. I hope the Supreme Court agrees.
