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Abstract

The Indian Child Welfare Act has become a controversial piece of legislation since the Supreme Court heard oral argument on the case of Haaland v. Brackeen in November 2022 and released its decision in June 2023. The statute was originally enacted in 1978 to remedy the United States’ tragic history of family separation in tribal communities, including removal of native children who were subsequently placed into federal boarding schools or non-native homes by a child-welfare system grounded in white-American assumptions. Congress recognized the vital nature of Native American culture for native children and the importance of native children to tribal existence by including statutory placement preferences. Once intended to protect the best interests of native children, these placement preferences have been challenged as a violation of the Equal Protection Clause by individual states and three white families who attempted to adopt a native child. Under the authority afforded by the statute, during the adoption processes, tribal entities stepped in. They called for the application of the statute’s placement preferences to ensure that the native children were placed in native homes and maintained their cultural identity through a connection with the Native American community. Ignoring the purpose of the ICWA, the statute’s opponents have argued that this discriminates against non-native families. Named after the local Native American tribes that once called this state “home,” Illinois has its own history of profound prejudice and discrimination against native tribes and their children. However, recognizing its part in the forced assimilation of native children into white society, Illinois’s decades-old precedent upholds the ICWA as constitutional. Its courts have correctly recognized that the political classification created by the statutory placement preferences is rationally related to the legitimate government interests of preventing native family separation and respecting tribal sovereignty. This Note advocates for the Supreme Court to recognize the United States’ active participation in the destruction of native tribal entities and detrimental consequences to native children by upholding the ICWA as constitutional against future equal protection claims. By upholding the placement preferences, the Supreme Court could preserve and promote the vital protections afforded to native families through Illinois’s precedent.

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