Opinion: The Supreme Court needs to uphold protection for Native American children

As an American Indian pediatrician working in my own tribal community, I know how important it is to ensure that children have connections to their culture and community to support their well-being. That is why I think it is essential that the U.S. Supreme Court uphold the Indian Child Welfare Act when it hears a case on Nov. 9 that challenges the law.

In Brackeen v. Haaland, opponents of tribal sovereignty and self-determination challenge the act’s constitutionality by arguing that the law exceeds the authority of Congress provided by the U.S. Constitution’s Indian Commerce Clause, violates the equal protection clause of the Fifth Amendment, and forces state agencies and courts to enforce federal law in violation of the Tenth Amendment of the U.S. Constitution and states’ rights.

But nothing could be further from the truth. Removing or weakening the protections the act affords to American Indian/Alaska Native (AI/AN) individuals would be a grave mistake.


Growing up with a single mother who worked to support our family, I was often found at my mom’s twin sister’s house a block away from our family home. My aunt was also a single mother, widowed at a young age, so my cousin was often at my house. They did their best to raise us, sharing duties — my mom would take me, my sister, and my cousin to medical and dental appointments while my aunt would watch us on early mornings and pick us up when my mom worked late. They created a nurturing environment and a continuity of extended family and culture that molded me into the physician I am today. American Indian/Alaska Native kids around the U.S. deserve to have the same opportunity that I did.

Congress passed the Indian Child Welfare Act more than 40 years ago as a direct response to problems caused by harmful federal and state policies of forced assimilation. American Indian and Alaska Native children were often removed from their families, communities, and cultures and placed in Indian boarding schools. In these settings, children were often punished for speaking their native languages, using their native names, and practicing their cultures. Many endured extensive physical, emotional, and sexual abuse, leaving historical traumas imprinted on Native American communities for generations.


Forced assimilation continued through the systematic placement of AI/AN children in foster care — often without proof of abuse or neglect — with non-AI/AN families, destroying tribal and family structures. Children were often placed far from their extended kinship and tribal communities, depriving them of the connections that could support their resiliency and health.

It was in recognition of this history that Congress passed the Indian Child Welfare Act. Although AI/AN children are still more likely than other children to be placed in foster care, the act allows them the opportunity to stay within their communities with extended family or other AI/AN community members.

Allowing children to stay connected to their communities and cultures supports their health and wellbeing. I have seen a patient struggling with ADHD and depression light up when talking about winning their dance competition at the local powwow over the weekend. Their ability to connect with their culture serves as a foundation for their healing and thriving. It is something that they can feel proud of while dealing with their health and school challenges, and is an opportunity that exists because they have such strong ties to extended family and tribal community.

The American Academy of Pediatrics, of which I am a member, stands with other leading child welfare organizations in recognizing the Indian Child Welfare Act as the gold standard for child welfare and protection from the health consequences they continue to face due to generations of harmful policies. Weakening or dismantling the act would put AI/AN children and families at risk of preventable harm.

As a pediatrician, I understand that the key to a child’s healthy growth is having relationships that build attachments, healing, and resilience. I often see these emerge within the tribal community, extending beyond the nuclear family. My own childhood experiences also give me a firsthand understanding of how these connections can be the foundation for future thriving. Children are sacred in Indigenous cultures and their well-being is vital for our future and continued resilience.

American Indian and Alaska Native children already face too many unacceptable health disparities. Undermining of Indian Child Welfare Act will only worsen them. I urge the U.S. Supreme Court to uphold the act and put the health of these children and their communities and cultures first.

Allison Empey is a pediatrician working in her tribal community in Grand Ronde, Ore., and at Oregon Health & Science University in Portland, and chairs the American Academy of Pediatrics Committee on Native American Child Health.

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Source: STAT