The Indigenous Peoples’ Journal of Law, Culture & Resistance

The Indian Child Welfare Act (ICWA) is a law that was passed to address the removal crisis of American Indians from their community to non-Indian families. The removal crisis is a result of centuries of detrimental federal government policies such as assimilation laws and boarding schools and campaigns to “adopt out” Indian children. ICWA has been challenged over the years in court but has prevailed. Although child removal has decreased slightly since its adoption, the data on removal are still shocking and must be addressed. The most recent development in the fight over ICWA is Brackeen v. Bernhardt where a non-Indian adoptive couple is suing over ICWA’s constitutionality under the equal protection clause and Tenth Amendment. Because of the confusion between the lower courts, the case is likely to be decided by the Supreme Court.

Meanwhile, the United Nations Declaration on the rights of Indigenous People (UNDRIP) is an international instrument that was adopted by the UN General Assembly in 2007. UNDRIP proclaims a comprehensive list of collective and human rights held by indigenous peoples and individuals. UNDRIP is watershed legislation, the first to legally recognize indigenous people’s rights on the international stage. The Declaration’s Articles include the right of indigenous people and their children to not be subject to removal from their culture or be subject to forced assimilation into others. The Articles are remedial in nature; they highlight the government’s obligation to pass and enforce legislation such as ICWA to mitigate a legacy of removal created by federal government policies.

I argue that the Supreme Court should use UNDRIP to find in favor of the Defendants and ICWA’s constitutionality. I will explain how, although an international document, UNDRIP is especially authoritative in the Brackeen case where American Indigenous peoples’ rights hang in the balance. I will show how the substance of UNDRIP can assist the Court in its constitutional analysis. And lastly, I will provide two examples of how a domestic court and foreign court have already begun to utilize UNDRIP in similar cases, demonstrating UNDRIP’s relevance and suitability to the Brackeen litigation.