SIOUX FALLS, S.D. (KELO) — The Supreme Court of the United States began its fall term Monday with a docket of cases ranging from environmental protections to federal elections. But mixed into the list of arguments is one that could impact tribes in South Dakota and across the country.

Brackeen v. Haaland is a case centering around the Indian Child Welfare Act of 1978 (ICWA), which focuses on assimilation, tribal culture and the adoption of Native children. Across the country, tribes are watching this case unfold to see how it will impact tribal sovereignty and the relationship between tribes and the federal government.

Ann Tweedy is a professor of law at the University of South Dakota Knudson School of Law who specializes in Indian law and has spent time representing tribes of the Pacific Northwest. South Dakota’s tribes and the fact that USD teaches Indian law is what brought Tweedy to Vermillion. She is one of many awaiting SCOTUS’ decision in Haaland v. Breckeen.

“[The Indian Child Welfare Act is] an act that was designed to protect children who were Native and their families and also the tribes from large scale removals of these children from their families,” Tweedy explained.

According to the professor, in Native culture, extended families play a role in the raising of a child rather than just the nuclear family. ICWA was created to “combat that history of racism” of forcibly assimilating Native children by placing them with white families and households, Tweedy explained.

“And there are placement preferences if the child is taken away, that they would go to an extended family member, if available. And if that’s not available, then some other family within the tribe or some other Native family, if there’s nobody in the tribe that can take them. So should try to keep Native children with their families, if possible, and attached to their culture,” Tweedy said.

ICWA came at a time when Native children were being forcibly assimilated following the decline of boarding schools, Tweedy explained. The act was brought forward to “combat that history of racism” and try to preserve a child’s cultural ties to their tribe.

“So, there’s a lot,” Tweedy said. “There’s a poverty aspect to it as well. But it was just trying to kind of level things so that Native families can stay together, because there is still so much discrimination against them with social services agencies.”

The case has several plaintiffs including white families who wanted to adopt Native children that felt ICWA was a barrier to them being able to do so. 

“And so even though that particular plaintiff was able to adopt, they still want to challenge ICWA, because they feel like it was unfair that it was a harder, harder to adopt than there was less chance that they would be able to adopt the child,” Tweedy said.

The concern from some is that if ICWA is overturned, it could more broadly threaten tribal sovereignty and impact things like the Indian Gaming Regulatory Act, Tweedy added. 

“But then that’s such a radical change and really goes against centuries of jurisprudence. So, I don’t think there’s a large chance that that will go forward. But if it did, then it would have devastating effects on federal recognition of tribal sovereignty, I would think,” Tweedy said.

With SCOTUS’ recent decisions over the summer and on the upcoming docket, there seems to be cases dealing heavily with the distinction between federal and state control when it comes to a variety of topics. That includes the ICWA decision, Tweedy said.

“And that is, is very present in in this ICWA case as well, because there’s an argument that by requiring state agencies to do certain things, and it’s, it’s violating what’s called the anti-commandeering doctrine, which is was in my understanding kind of an obscure doctrine until it was argued in this case that because ICWA does require, like states to provide active efforts to make sure that Indian families can stay together and requires expert testimony to, to remove an Indian child on a long term basis,” Tweedy explained.

Tweedy said that the idea of ICWA potentially being struck down by SCOTUS is “hard to think about.”

“I think one of the results could be that certain parts of it were struck down,” Tweedy said. “Like the one of the things that the Fifth Circuit looked at in their en banc decision was the preference for other Indian families.”

Tweedy is referring to the set of preferences for placing a Native child with a Native family. 

“And so, one of the arguments that that got some salience in the Fifth Circuit was the idea that other Indian families was a racial preference, because it wasn’t tied to the tribes,” Tweedy said. “So, I think you could see some smaller cuts into ICWA. That would have difficult effects on tribes and native families in South Dakota, but wouldn’t be as drastic as like overturning it.”

When it comes to South Dakota, Tweedy said that the removal of Native children from their tribal and cultural communities into white households is already high.

“And so, I think, striking down, it would just cause those, I would imagine, cause those rates to go through the roof, because they’re already very concerning,” Tweedy said.