Tribal law expert available to discuss imminent Indian Child Welfare Act case heard by Supreme Court

LAWRENCE — The U.S. Supreme Court will soon hear the case of Brackeen v. Haaland, which will consider the constitutionality of the Indian Child Welfare Act.

Sarah DeerSarah Deer, University Distinguished Professor in the Department of Women, Gender & Sexuality Studies and the School of Public Affairs & Administration at the University of Kansas, has filed an amicus brief with the court. She is available to discuss this significant event with media.

“Brackeen is the first Supreme Court case to address the Indian Child Welfare Act since Adoptive Couple v. Baby Girl in 2013. There is more at stake in this case, however, because one of the questions to be resolved is whether ICWA is constitutional at all. In other words, the Supreme Court could overturn ICWA,” Deer said.

People may assume that the purpose of ICWA is to take Native children away from white foster/adoptive parents, Deer said. However, that typically only happens if ICWA is not followed from the beginning and/or is deliberately ignored.

“Native children in state court deserve to have their nation involved in any long-term decisions about custody arrangements. And ICWA is considered a ‘gold standard’ by numerous child advocacy groups, who appreciate the value of connecting Native children with their heritage and citizenship,” she said.

An amicus brief (“friend of the court”) is filed on behalf of an entity that is not one of the main parties to the litigation. People and organizations who will be affected by the decision can file these briefs so Supreme Court justices will be aware of the potential effects of their decision. Deer worked with attorneys Mary Kathryn Nagle (Cherokee) and Shoney Blake (Choctaw) to file a brief on behalf of two women who were adopted by white families pre-ICWA and struggled throughout their lives to reconnect with their tribal nations.

Deer said, “I’m trying to stay optimistic, but this particular court seems somewhat hostile to tribal nations. In addition, Justice Roberts and Justice Coney Barrett are adoptive parents (of not Indian children). As such, they may bristle at any argument that questions the value of adopting children outside the tribal nation. Clarence Thomas also has a history of suggesting — in dissents — that all Indian law is potentially unconstitutional.”

Both a 2014 MacArthur Fellow and an inductee into the National Women’s Hall of Fame, Deer is credited for her role in the 2013 reauthorization of the Violence Against Women Act. Her scholarship focuses on the intersection of federal Indian law and victims’ rights, using Indigenous feminist principles as a framework. She is a citizen of the Muscogee (Creek) Nation.

To schedule an interview with Deer, contact KU News Service public affairs officer Jon Niccum at 785-864-7633 or

Mon, 08/29/2022


Jon Niccum

Media Contacts

Jon Niccum

KU News Service