It’s the most consequential challenge to ICWA since its inception, and tribes fear a ruling against the law could threaten all tribes’ inherent sovereignty. That’s because the plaintiffs in the case, a non-Native couple trying to adopt a Native child, are arguing that ICWA is race-based and violates the equal protection clause in the Constitution.
“If #ICWA opponents in Brackeen v. Bernhardt are successful, it will potentially impact the sovereignty of every tribe, because the plaintiffs view tribes as racial entities, not sovereign governments,” the Cherokee Nation tweeted in March.
The reason ICWA exists at all is because Congress wanted to try to remedy to an ugly period in American history: For decades, the U.S. government took tens of thousands of Native children away from their families on reservations, sometimes forcibly, and put them in boarding schools or placed them with white families to assimilate them into white culture.