Opinion: Where Would Indigenous Children Be Without The Indian Child Welfare Act?

We all know by now that the Supreme Court agreed to hear a challenge to the constitutionality of the Indian Child Welfare Act of 1978 (ICWA), which makes it difficult to separate Native American children from their families, tribes and indigenous heritage.

Despite having support from both Republican and Democratic officials, state officials feel the Indian Child Welfare Act violates the Constitution’s promise of equal protection. Furthermore, state officials feel the Indian Child Welfare Act does little to protect the real needs of the child and deprives them of proper placement outside of their community. The 1978 Act was enacted after thousands of indigenous children were forcibly removed from their homes and tribal communities. Some 35 percent of all indigenous children were removed from their families and more than 85 percent were placed with families that had zero affiliation or cultural ties to a given tribal community. The generational abuse left many without a connection to their culture, language, or families. 

Family courts typically make decisions based on the best interests of the child in question. The 1978 law determined that where Native American children are concerned, one of those interests is protecting their relationships with their respective tribes. 

“The tribe has an interest in the child which is distinct from but on a parity with the interest of the parents,” Justice William J. Brennan Jr. wrote in a 1989 decision, Mississippi Band of Choctaw Indians v. Holyfield. 

The Indian Child Welfare Act sets federal requirements that protect indigenous children in adoption proceedings and requires state and caseworkers to make several considerations during hearings, such as:

• the family must be involved
• appropriate placements that fit under ICWA provisions must be identified
• tribal nations must be notified of the adoption proceedings

Any measures by the courts that divert from the above, can place the child in danger. Although the Indian Child Welfare Act is labeled as the gold standard in many proceedings, states such as Texas, Louisiana, and Indiana are currently contesting the law in recent cases. According to some lawmakers, the ICWA violates state laws by simply tipping the scales and favoring tribes. Lawyers for the states feel the Indian Child Welfare Act fosters an imbalance in adoptions proceedings by favoring legal mechanisms based on race and tribal affiliation. Several tribal nations, including the Cherokee and Navajo, two of the country’s biggest tribes, have intervened in many adoption cases that attempted to place children outside their communities.

Lawyers for the state of Texas cited the only reason there is an increase in the adoption of indigenous children, is due to an increase in poverty, substance abuse in the home, gang violence, and neglect. The problems that plague Indian Country or retain reservations are repeatedly used against families, which is part of the systemic bias within the court and legal system.

For instance, if the child comes from a reservation that is high on crime, lacks certain services, or there is a history of alcoholism within the community, the lawyers tend to use this to paint a picture that is often inaccurate, if not racist.

Recent research shows that indigenous children are still four times more likely to be removed from their homes than their non-Native counterparts. So it begs the question: if indigenous children are that much more likely to be removed from their homes with the Indian Child Welfare Act in place, then where would they be without it?

Feature image credit: Native American Children by Rennett Stowe