Josh Gupta-Kagan

When the Supreme Court, in Brackeen v. Haaland, upheld the Indian Child Welfare Act (ICWA)—federal legislation making it harder for child family regulation (a.k.a. child protection) agencies to separate Indigenous children from their parents—it centered Congress’s effort to remedy a long history of unwarranted separations of Indigenous families. That is how Justice Barrett began her majority opinion, and Justice Gorsuch significantly expanded on the point. Barrett and Gorsuch’s historical narrative focuses on past harms done and Congress’s remedy—ICWA. Even in Gorsuch’s more detailed telling, the role of Indigenous political and legal activism is at most implied. Laura Briggs offers a necessary and important addendum, making explicit that implied history. The complete story, which Briggs begins to tell, leaves a different impression, both about the future of ICWA and the efforts to transform the family regulation system more broadly.

Justice Gorsuch’s Brackeen concurrence recites the ugly history of state family regulation systems’ and private individuals’ “mass removal of Indian children from their families” in the mid-20^th century, a practice which built on “a much older policy of removing Indian children from their families,” and which collectively “had devastating effects on children and parents alike.” Thirty-five pages of painfully detailed history of the victimization of Indigenous families follows, leading to the legal conclusion: “ICWA must stand” as a perfectly lawful action to preserve tribal sovereignty. Gorsuch concludes that federal regulation of affairs with Indigenous nations remains appropriate – even in family law, an area generally left to states – because “state intrusions on tribal authority” had happened for far too long and with devastating impact on Indigenous families and communities. As important as Justice Gorsuch’s concurrence is, Briggs explains how there is more to the story.

First and foremost, Congress only responded after years of activism led by impacted Indigenous families. Gorsuch at best alludes to this activism—“Eventually, Congress could ignore the problem no longer”—but does not detail it. Briggs fills the gap, telling the story of Native communities’ activism, aided by public interest lawyers. For instance, Elsa Greywind barricaded her home to try to prevent state CPS workers from removing her grandchildren, leading to her arrest. Greywind and others—advised by lawyers from the Association on American Indian Affairs, became public faces of a movement to challenge this state violence. They earned media attention, successfully advocated for federal hearings and, only after overcoming years of congressional resistance, secured ICWA’s passage in 1978. (Pp. 1138-42.)

Second, telling the history without this activism casts Congress as the hero and ICWA as the prize. Implicitly then, the ongoing conflict is simply whether ICWA can remain, and Brackeen the climactic fight. But, even after ICWA, shockingly large disparities in the number of Indigenous families separated via state action persist two generations later; while the “boarding schools” in which the government placed Indigenous children may be no more, much more action to preserve Indigenous families remains to be done. Indigenous children are in foster care at nearly twice the rate of Black children, who are themselves in foster care at 1.65 times the rate of White children.

Relatedly, casting Congress as the hero presents American institutions as redeeming themselves for past atrocities committed against Indigenous communities. Briggs insightfully connects this redemption narrative to broader disputes about American history. Right-wing voices seeking to prohibit schools from teaching a full accounting of this county’s racial history have sometimes insisted, as Briggs documents, that any such history include a redemptive arc—e.g., the United States had slavery and Jim Crow, then the Reconstruction Amendments, Brown v. Board of Education and the Civil Rights Act fixed things—and that books that emphasize challenges that remain be restricted. (P. 1137.) Brackeen’s incomplete history implies a similarly simplistic yet redemptive arc: The United States destroyed Indigenous families, then Congress enacted ICWA, and the Supreme Court upheld ICWA. A remaining challenge for our nation is telling more complex historical stories, especially when our institutions have redeemed themselves far less fully than some would like to believe.

Though Briggs’s paper features a critique of Brackeen and Gorsuch’s incomplete history, its implications extend beyond that context. It makes plain that impacted families’ activism, aided by attorneys, continues to be essential to ensure that the state does not separate families unnecessarily. Briggs shows that this was and continues to be true for ICWA and indigenous communities.

This lesson applies to ongoing activism to narrow the family regulation system so it investigates, surveils, and separates fewer families (Indigenous and not). Like activism for ICWA, it is increasingly led by impacted parents and supported by lawyers for parents and children. One leading group in New York City has a telling name: the Parent Legislative Action Network, which describes itself as a “coalition of impacted parents and young people, advocates, attorneys, social workers, and academics collaborating to effect systemic change.” PLAN has won significant limits on the state’s ability to place parents on the state central registry of abuse and neglect (which effectively prevents parents from working with children, in many health care jobs, or becoming foster parents themselves), and has influenced the agenda for further potential reforms.

In another state, such activism has had a particularly apt result: In 2024, following at least 6 years of effort, the Minnesota legislature unanimously passed the African American Family Preservation and Child Welfare Disproportionality Act. This Act applies some of the elevated standards for ICWA to all children subject to family regulation system involvement, including greater efforts to preserve and reunify families (“active efforts” as ICWA requires, not merely “reasonable efforts” as family regulation law more generally requires), and a clear legal preference for kinship placements over placements with strangers (which appears in ICWA but not in many foster care statutes, and which shifts the burden to agencies to explain why a kinship placement is impossible rather than require families to show why it is viable). The Minnesota legislation thus takes a victory from ICWA advocacy in the 1970s and seeks to leverage it to limit unnecessary family separations in the system as a whole. (A recent Montana bill did the same.) These legislative developments imply a very different story. ICWA and Brackeen are not the redemptive end, but the potential beginning of a new era of reforming the family regulation system.