(Image: Navajo students in Navajo language immersion class, Indian Wells Elementary School. The Supreme Court just ruled that this is just the kind of program that more Indian children can enter if ICWA is upheld)
The U.S. Supreme Court just ruled (June 15, 2023) in favor of Indian families and tribes by upholding the Indian Child Welfare Act (ICWA, 1978), which was enacted to protect Indian children from being taken away from their tribal communities. Challenges to ICWA reach the Supreme court every few years, and so far, the ICWA has survived each time.
What, exactly, is ICWA?
The short version is this: following the boarding school era, a large number of Native American children were still being removed from their parents’ care based on allegations of abuse and neglect. Many of these same children were eventually adopted by non-Indian families, and lost to their tribal communities.
Instead of rounding up hundreds of Indian children and sending them far away, local child welfare systems had now made it possible to take one or two children at a time and assimilate them into “American” (White) culture.(It’s ironic that a 1970 federal mandate was still sterilizing a record number of Indian women at the time ICWA was enacted in 1978.)
ICWA was designed to combat this slow erosion of Indian nations. The law states that when an Indian child enters the foster care system, there are stated preferences about where the child shall be placed. These are:
ICWA mandates that the Tribal community have a say in where the child will be placed. In fact, this federal law requires all local child welfare agencies (whether state, county or city) notify the child’s tribe that a child neglect case has begun. This means the Indian family has an ally when engaging with the Family Court system.
ICWA’s first preference helps to keep the child within her kinship network, the “extended family,” which expands the definition of family beyond Western culture’s focus only on the nuclear family of two parents and their children. ICWA allows a Tribe to include a broader range of relatives, from grandparents to cousins, as potential foster parents.
The majority of U.S. foster care placements are with extended family, and ICWA helps ensure that same outcome for Indian children as well. As many Indian nations have established their own foster care agencies and group homes, Native American children have a much higher likelihood of remaining in their tribe, supervised by agencies within their culture.
To their credit, the two Republican Supreme Court Justices who wrote the pro-ICWA ruling, rejected all challenges made in the case. Justice Amy Coney Bennett, wrote “we reject all of the petitioners’ challenges to the statute (ICWA) on the merits and others for lack of standing.”
Justice Neil Gorsuch (another Trump appointee) was even more clear about the original intent of ICWA, saying that Congress had the legal authority to “secure the rights of parents to raise their families as they please,” and “the right of Indian children to grow in their culture, and the right of Indian communities to resist fading into the twilight of history.”
In other words, ICWA was designed to prevent cultural genocide.
If only the enactment of ICWA was so straightforward in the family courts of America. There are other complications, such as when one parent is Indian and the other is not, or when a woman voluntarily surrenders her child for adoption without notifying the Indian father, or his Indian tribe; about the adoption.
In fact, most legal challenges to ICWA have arisen from these, more complicated, family court cases. That includes the recent challenge the Supreme Court just defeated.
ICWA has many organized challengers, usually rooted in the political Right, which deserve some scrutiny. Future articles will delve deeper into this and other issues of Indian Child Welfare.
“ICWA Stands! Supreme Court Affirms Indian Child Welfare Act,” by Akaili Berg, Elise Wild, and Brian Edwards, Native News Online, June 15, 2022.
25 United States Code, Indian Child Welfare, Chapter 21, uscode.house.gov
“A Practical Guide to the Indian Child Welfare Act,” National Indian Law Library, narf.org
“The Native American Women Who Fought Mass Sterilization,” by Brianna Theobold, Time magazine, November 28, 2019, Time.com
Haaland, Secretary of the Interior v. Bracken, Supreme Court of the United States, October Term 2022.