What You Need To Know About the Indian Child Welfare Act and the Native American Families and Tribes It Prioritizes

A long history of United States government policy has separated Indigenous children from their families and communities. The Indian Child Welfare Act was created to stop this without a good cause. It's now being challenged.

Native American Mother and Daughter
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What is the Indian Child Welfare Act?

The Indian Child Welfare Act (ICWA) is a federal law that sets standards for the placement of Native American children in foster and adoptive homes. It requires states to place Indian children first with their extended family members if they meet placement criteria and are deemed safe. If that's not possible, the next placement preference is with community members from the child's tribe, and then with other Native American families.

Leading child advocacy groups, including the National Court Appointed Special Advocates Association and the National Association of Social Workers, call ICWA the "gold standard" of child welfare policy. It's considered a best practice because it emphasizes cultural identity and protects family relationships and units. It also ensures that Native American families receive culturally-appropriate services and protections from state child welfare organizations.

Prior to ICWA, the Indian Adoption Act of 1958 allowed government officials to remove American Indian children from their parents and tribal communities without any cause or justification. A study by the Association of American Indian Affairs in 1977 found that 35 percent of all American Indian children were in out-of-home care. Out of those children, about 85 percent were placed with families that were not Native American.

A long history of United States government policy has separated Indigenous children from their families and communities. Starting in 1869 and continuing until the 1960s, thousands of Native American children were removed from their homes and families and placed in boarding schools. This removal from their culture was devastating to the children, their families, and their tribal communities.

In response to this traumatic history of removal, ICWA requires states to make "active efforts" to keep children with their parents. These active efforts require states to provide social services before a child is removed from the home. If removal is necessary, the state is required to provide support and services to the family so the child can be safely returned. ICWA was created to stop the removal of Native American children from their families without a good cause.

Opponents of ICWA Call It Racial Discrimination

In 2017, ICWA was challenged in the courts by a non-Native American couple from Texas wanting to adopt a child who was eligible for membership in the Cherokee Nation and Navajo Nation. At first, their request to adopt was denied after the Navajo Nation found a home with a Native American family. However, in 2018 the couple was successful at adopting the child when that placement with the Navajo family was not successful.

Although the couple finalized the adoption, the couple sued the Department of the Interior and were backed by a legal team that included State Attorney Generals from a few states, including Texas, Louisiana, and Indiana. They filed suit in federal court to overturn ICWA on the grounds of racial discrimination and in violation of the Equal Protection Clause and the 14th Amendment. Some say it's also in violation the the 5th Amendment.

Proponents of IWCA Prove It's About Well-Being

The Cherokee Nation of Oklahoma and three other tribes defend ICWA, arguing that it is not related to race, but a unique political relationship between the federal government and the 573 federally recognized tribes that exist today. Proponents of ICWA argue the importance of keeping Native American children within their tribe, which is essential to their well-being and cultural identity.

Over 20 states, which are home to over 70 percent of tribal nations, have filed briefs in support of ICWA with statements of support of ICWA saying that the law helps them better serve the Native American population. ICWA helps connect states with Tribal Nations, so they can work together to develop culturally-appropriate case plans and find extended family members for kinship care placements.

Studies show that children cared for by relatives experience more positive outcomes ,such as greater stability and fewer behavioral problems compared to children in foster care.These family connections are critical for healthy child development and important for a sense of belonging and culture according to research.

Today, Native American children are still overrepresented in the child welfare system. Native American children are removed from their homes and placed in foster care "at a rate 4 times more often than their white counterparts" even when both families have the same presenting concerns according to the National Indian Child Welfare Association. Native American children are also "2.1 times higher than their proportion of the population" to be in foster care according to the same report.

What's at Stake?

If ICWA is overturned, much more is at stake than child welfare. It also threatens tribal law and tribal sovereignty. Tribal sovereignty is the right for tribes to make their own laws and run their own distinct governments. This predates the establishment of the Federal government and the U.S. Constitution. This status and the right to govern themselves has been established by Congress, the Constitution, and treaties that predate the creation of the US government. It has also been reaffirmed by Supreme Court decisions for nearly 200 years.

The Constitution recognizes Native American tribes as distinct forms of governments, with similar powers as federal and state governments. Simply put, tribal governments have their own branches of government that regulate their own internal affairs. Tribal governments provide multiple programs and services, like land management, emergency services, educational programs, and social welfare services. They enforce laws through their tribal police departments and tribal courts. Most tribes operate their own businesses and are economically self-sustaining.

This self-governance is essential for tribal communities to continue to protect their unique cultures, identities, and preserve their heritage and future. If ICWA is struck down based on racial discrimination, most Native American rights from gaming to Indian Healthcare Services are put in jeopardy.

"As leaders of our respective tribes, we know the importance of keeping our children connected with their families, communities, and heritage. ICWA has proven itself as the gold standard of child welfare law, which is why both Republican and Democratic administrations, tribes and tribal organizations, and child welfare experts continue to defend it," Cherokee Nation Principal Chief Chuck Hoskin Jr. and 3 other tribal leaders said in a statement.

"We will never accept a return to a time when our children were forcibly removed from our communities, and look forward to fighting for ICWA before the Court. We are confident that the Court will come down on the side of children, families and centuries of legal and constitutional precedent."

To learn more about ICWA and the history behind it, visit the Lakota People's Law Project and the National Indian Child Welfare Association.

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