The South Dakota amicus brief involves the U.S. Supreme Court case Brackeen v. Haaland. Arguments in the case are scheduled before the high court this November.
Stephanie Amiotte, legal director for the South Dakota ACLU said if the court overturns the Indian Child Welfare Act, or ICWA, it could be devastating for tribes.
“ICWA was enacted by Congress to address a situation where disproportionate numbers of Indian children were being removed from their homes, and eventually a disproportionate number of them were being adopted into white families,” Amiotte said.
Tribes contend the policy designed to place Indian children with Native families is consistent with Native political sovereignty. But opponents say the race-based policy is unconstitutional.
Amiotte said there is a misconception about how tribal entities are viewed legally.
“Tribes are recognized by the federal government as political entities, not a racial group," she said. "So, if ICWA is overturned or determined to be unconstitutional, it poses a threat to the very existence of tribes in the future.”
Amiotte said keeping Indigenous children connected to their culture, improves outcomes.
“Native American Children have been essentially invisible within the American Society." Amiotte said. "Their cultural identity and their ethnic pride results in greater school success, lower alcohol and drug use, higher social functioning and assists them in overall success and achievement in life.”
Twelve state ACLU affiliates are included in the brief, including Montana, Nebraska, North and South Dakota, and Wyoming.