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The Indian Child Welfare Act and its Vital Yet Constantly Challenged Existence

by Hillary Jean-Bart

Native Americans. Denver Public Library Special Collections

Once again, outdated and ignorant mindsets on the multiplicity of cultures that exist in the United States are setting up the potential to fuel one of the most harmful judicial decisions in our country’s history.

The Indian Child Welfare Act (ICWA) of 1978 was created to address a whole host of issues at the time concerning American Indian and Alaskan Native(AI/AN) children. It was no secret that the United States up until this point employed vicious and inhumane tactics to subjugate Native American Tribes since the country's founding. Over time, these tactics have evolved to fit with the changing times and seem to repeatedly target the same group: Native children. Due to the ease of manipulating child protection laws to gain custody and control over minors, opponents have used this weak spot to target the future of Native Tribes’ existence. At first, it was in the form of taking Native children from their home tribes and placing them in boarding schools for extended periods of time. It was later revealed that these boarding schools often mentally and physically abused their students, while purposefully erasing all Native history from their curriculum in order to better prepare the students to assimilate into a white society. It was later found that mass graves were present at multiple boarding schools across the country and these findings have only fueled the fire of Natives to react to the harm that is impacting their community.

U.S. school for Indians, Pine Ridge, S.D.

After the closing of these schools in the mid-20th century, Native advocates wanted to address further discrepancies that existed in the U.S. adoptive system when concerning Native children. According to a national poll done in the late 1960s, 25-35% of native children were being taken from their extended families and being put up for adoption, and 85% of those children were being put in homes outside of their tribes. Not only are these numbers grossly larger than the national average for white children but such statistics alarmingly display the scope of impact to Native communities when such separations occur.

The ICWA’s provisions try to prevent negative impacts that can arise from the adoption of Native children by ensuring that in only extreme circumstances may the child be placed under the care of a family with no tribal ties. Federal provisions of the act include requiring caseworkers to provide active efforts to the family, identifying placements that fit under the ICWA provision standards that prioritize a child’s tribe as the first destination, notifying all appropriate tribes and relatives within the custody proceedings as well as making sure that such parties are actively involved until the process is complete.

Extensive research on the issue has shown that children in kinship (established familial and cultural) pairings have fewer behavioral problems, issues stemming from identity crises, and lower suicide rates compared to those taken out of their tribal homes. Additionally, due to the distinct protective factors that exist uniquely from non-tribal children, it is imperative to preserve elements of cultural and familial connectedness within the adoptive processes of Native youth. But to some, this preservation of culture and heritage is not the main priority when adopting children with such backgrounds.

A family in Northern Texas is looking to uproot these lasting, protective measures due to what they believe are serious flaws with the act itself. After filing suit once the adoptive process of a young Native child fell through due to ICWA provisions, the constitutionality of the act is being challenged. The Brackeen’s, a noticeably caucasian family with no tribal connections, claim that ICWA provisions unfairly discriminate against them and that their race should not play part in the adoption process of Native children. They also claimed that the ICWA prevents Native children from being adopted into safe homes in order to preserve tribal living, which they claim to be usually unsafe and unfit. This argument has been made by a hoard of non-tribal families trying to adopt in the past but their reasoning stands on fundamental flaws that must be addressed. What they claim to be a racial issue is actually one of culture and political relevance as tribal membership is not based on race, but on the sovereignty defined, and protected, by the U.S judicial system. Children of AI/AN ancestry are not automatically protected under the ICWA for this reason. These laws were made to uphold these provisions to keep tribal and cultural significance from being diminished by those like the Brackeen’s.

Interviews directly from the Brackeen’s also showed that their reasoning for not seeing the adopted child’s native family as safe stems from the unending rise of evangelical Christian saviorism towards Native placements. What they claim to be unsatisfactory is due to the alleged small living conditions and tribal living among extended daily members which are actually among a set of deep-rooted practices, and norms, that have prospered in Native culture for generations. This lack of understanding that is rooted in materialistic and white supremacist ideologies can threaten the prosperity of Native units.

The Brackeen’s legal team, which notably includes the conservative think tank Goldwater Inc, is also backed by lobbyists interested in removing recognition rights for native tribes.

The controversial nature of the Brackeen’s circumstance has brought this suit much higher up the rails of the judicial system, with most notably one at the Fifth Circuit Court. This court was able to glean that some of the ICWA is unconstitutional but its main provisions still stand. Because of this, the offending party will most likely bring this case to the Supreme Court to potentially grant certiorari and hear the case officially. At that point, if the Supreme Court decides that the ICWA's provisions are unconstitutional, it could dismantle the definition of tribal rights and allowances that uphold Native judicial systems.

Above all, cases like this put the lives of Native children in jeopardy in a world where their life, safety, and culture is constantly at risk. In a country where Native children are 4x as likely to be placed into adoption, these attacks should be challenged with full force and further provisions should be made to ensure their safety as well as protection.


Additional Information on the Indian Child Welfare Act

Appendix 1226-A: Child-Placing Requirements of the Indian Child Welfare Act and Related Guidelines and Regulations

Understanding ICWA Placements Using Kinship Care Research:

Indian Child Welfare Act Fact Sheet

Protecting the Public Health of Indian Tribes: the Indian Child Welfare Act

The Lawsuit About the Indian Child Welfare Act That Isn’t About the Children

Federal Court Ruling on Indian Child Welfare Act Goes in Several Directions

How a white evangelical family could dismantle adoption protections for Native children

U.S. Supreme Court to hear ICWA Case

5th Circuit upholds Indian Child Welfare Act as constitutional, reversing Lower court

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