AG Kaul Joins Bipartisan Coalition in Defense of Indian Child Welfare Act Protections Before the U.S. Supreme Court

Oct 11 2021

MADISON, Wis. – Attorney General Josh Kaul today announced he joined a bipartisan coalition of 26 attorneys general in an amicus brief in support of the United States and four federally recognized tribes in their efforts to uphold critical protections guaranteed under the Indian Child Welfare Act (ICWA). Filed before the U.S. Supreme Court in Haaland v. Brackeen and Cherokee Nation v. Brackeen, the amicus brief highlights the states’ compelling interest in standing up for the well-being of all children, including Native American children, in state child-custody proceedings.


“The Indian Child Welfare Act is a landmark protection for Native American children and families,” said Attorney General Kaul. “This bulwark against unjust and discriminatory treatment in child-custody proceedings should be upheld.”


Congress enacted ICWA in 1978 in response to a serious and pervasive problem: governmental and private parties were initiating child-custody proceedings that removed Native American children from the custody of their parents — often without good cause — and placed them in the custody of non-tribal adoptive and foster homes. That practice harmed children and posed an existential threat to the continuity and vitality of tribal communities. To address this, Congress established minimum federal standards governing the removal of Native American children from their families. ICWA’s provisions safeguard the rights of Native American children, parents, and tribes in state child-custody proceedings, and seek to promote the placement of Native American children with members of their extended families or with other tribal homes. In the four decades since Congress enacted ICWA, the law has become the foundation of state-tribal relations in the realm of child custody and family services. Collectively, the coalition states are home to approximately 86% of federally recognized tribes in the United States.


In the amicus brief, the coalition asserts that:

  • ICWA is a critical tool for protecting Native American families and tribes, and fostering state-tribal collaboration;
  • The court of appeals incorrectly concluded that several of ICWA’s provisions violate the anti-commandeering doctrine; and
  • ICWA’s preferences for the placement of Native American children with other Native American families and foster homes do not violate equal protection.


In filing the amicus brief, Attorney General Kaul joins the attorneys general of California, Alaska, Arizona, Colorado, Connecticut, Idaho, Illinois, Iowa, Maine, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Utah, Virginia, Vermont, Washington, and the District of Columbia.