Since European settlers arrived on the shores of what is now known as the United States, federal and state governments, intent on seizing Indian lands, have sought to undermine and threaten the existence of tribes through the forced separation and assimilation of Native children. By severing Native children from their families, tribes, and culture, colonizers believed they could stamp out Indigeneity and erase tribal people altogether. As with any nation, the future ceases to exist if children are prevented from carrying on the languages, traditions, and knowledge passed down from each generation to the next.

This tool of assimilation and genocide has been wielded against tribal nations and Native children repeatedly throughout history, and it is happening again now.

The Indian Child Welfare Act (ICWA) — a law that aims to protect Native children from forced removal from their families, tribes, and culture and preserve tribal sovereignty — is currently under attack and at risk of being overturned by the U.S. Supreme Court. Congress passed ICWA in 1978 to address the nationwide crisis of state child welfare agencies tearing Native children from their families and placing them in non-Native homes, in an attempt to force Native children to assimilate and adopt white cultural norms. Before ICWA, public and private agencies were removing 25 to 35 percent of Native American/Alaska Native children from their homes, and 85 percent of those children were placed in non-Native households.

Overwhelming evidence has found that being removed from homes and disconnected from culture, tradition, and identity profoundly harms Native children. The Indian Child Welfare Act requires state courts to make active efforts to keep Native families together and to prioritize the placement of Native children within their families and within tribal communities — where their cultural identities will be understood and celebrated.

This November, the U.S. Supreme Court will hear oral arguments in Brackeen v. Haaland, a case that challenges the constitutionality of ICWA. If the Supreme Court rules ICWA unconstitutional, it could have devastating consequences for Native children, families and tribes while simultaneously putting the existence of tribes in jeopardy. That’s why the ACLU and the ACLUs of Northern California, Alaska, Arizona, Maine, Montana, Nebraska, New Mexico, North Dakota, Oklahoma, South Dakota, Texas, Utah, Washington and Wyoming filed an amicus brief with the Supreme Court today urging the court to uphold the constitutionality of ICWA.

ICWA aims to address the forced separation of Native children and families and represents a small step toward acknowledging the centuries of genocidal violence that underpin this case. Beginning in the early 1800s, the architects of the Federal Indian Boarding School Program designed the program to erase the Indigenous identities of Native people. The government snatched children as young as four years old from their families and sent them to militarized boarding school institutions designed to destroy their Native identities and culture, often hundreds of miles away from their tribal homelands.

Any markers of their Indigeneity — language, clothing, traditional hairstyles, and even their names — were prohibited in these institutions. Indian boarding schools were not simply places where Native youth were stripped of their culture: many children died at these schools from outright neglect, malnutrition, untreated illness, and as a result of physical violence carried out against them.

While boarding schools were largely shuttered by the mid-1900s, the philosophy lived on: Native children were better off living with white families, even at the expense of their mental, physical, and spiritual wellbeing.

In 1958, the Bureau of Indian Affairs created the Indian Adoption Project. The project’s explicit goal was to assimilate Native children into white culture through adoption and the intentional destruction of Indigenous family units and tribal communities. During this era and continuing today, practices rooted in ethnocentric stereotypes operating under the guise of “child protection” resulted in the baseless separation of thousands of Native children from their families and homelands.

It is incomprehensibly heinous that — in order to build the country we all live in today — federal and state governments targeted Native children, robbing those children, their families, their communities, and their tribal nations of everything it meant to be Indigenous.

Brackeen v. Haaland is the largest threat to Native children, families, and tribes before the Supreme Court in our lifetimes. If ICWA is overturned, states would once again be allowed to tear Native children from their families, tribes, and culture while simultaneously threatening tribes’ very existence. The legal arguments made by the plaintiffs challenging ICWA in Brackeen undermine key tenets of federal Indian law, and threaten many other laws upholding tribal sovereignty.

Tribal sovereignty is the right of tribes — 574 currently recognized by the federal government — to make and be governed by their own laws. This sovereignty is inherent, as Native Nations existed long before the creation of the United States. Hundreds of treaties have guaranteed tribal nations the right to self-govern. Through these treaties, Native Nations gave up their right to millions of acres of land that would become the United States in exchange for promises to tribes, including the guarantee that lands “reserved” for tribes would be governed by the tribes in perpetuity. The outcome of Brackeen v. Haaland could put centuries-long legal precedent upholding tribal sovereignty — including tribes’ right and ability to preserve their unique cultural identities, raise their own children and govern themselves — in jeopardy.

Native families have a right to stay together, to care for their children, and to preserve tribal culture by ensuring access to their cultural identity, language, and heritage. The Supreme Court must protect this right and uphold the constitutionality of the Indian Child Welfare Act.

After the Supreme Court issued its official opinion overturning Roe v. Wade, Americans responded in force, taking to the streets in cities and towns across the country to express their devastation over the loss of the constitutional right to abortion.

Forcing someone to give birth against their will is unconscionable — but amid our new post-Roe reality – many state governments intend to do exactly that. In Wisconsin, all abortion care, except in cases to save the life of the mother, has stopped as courts sort out the enforceability of a state abortion ban enacted before women had the right to vote. For those of us who have lived our lives certain that our rights would remain secure, this current moment of upheaval will hopefully serve as an emphatic call to action that helps breathe new life into the contemporary movement for reproductive justice.

As we bring more people into that movement, our vision for reestablishing and expanding reproductive freedom must be bolder and more inclusive than before. We believe that women and everyone with the potential to become pregnant should be entitled to make their own decisions about what happens during their pregnancy – including people incarcerated in our jails and prisons who were denied that right long before Roe was ever at risk.

Being pregnant in jail or prison can be a frightening experience. While correctional facilities are constitutionally bound to provide a “reasonably adequate” standard of healthcare to incarcerated people under the Eighth Amendment, the quality of medical treatment offered in jails and prisons is notoriously poor. It is not uncommon for pregnant incarcerated people to receive little to no prenatal or postpartum care, which helps to explain why they are more likely to suffer a miscarriage and give birth prematurely.

Even during the nearly half century of constitutionally-protected abortion, incarcerated people were often unable to get the procedure. A recent John Hopkins study found that only 1.3% percent of pregnant people in prison end up receiving an abortion, a much lower rate than that of the general population.

In addition to the barriers to reproductive care, the conditions under which people in correctional settings are forced to give birth are often inhumane and traumatizing. When people give birth in a Wisconsin jail or prison, they can be shackled to a bed during and after delivery. In 2017, a lawsuit was brought against the Milwaukee County Jail by 40 women for requiring them to be shackled while hospitalized. This practice is widely seen as barbaric as well as unsafe for the health of pregnant people and their babies, prompting more than 20 states, ICE, the US Marshals, and the Federal Bureau of Prisons to limit or ban its use during pregnancy.

The widespread dissolution of privacy and bodily autonomy protections after the Dobbs decision provides a new avenue for empathy and coalition with those who have long been thoroughly stripped of those basic rights. Solidarity with incarcerated people is the most powerful way forward.