Indian Child Welfare Act

Anya, serving at the Moran Center in Evanston, IL has seen the impact of the Indian Child Welfare Act (ICWA) on their clients and dives into the current challenge to ICWA below. 

A crucial part of the Moran Center’s holistic practices is a Civil Law Clinic that often handles adoption matters and a social work team that works with many children and young adults in the foster care system. In honor of Indigenous people’s day, NLADA is taking a look into the Indian Child Welfare Act, a significant part of both American Indigenous history and our legal system. In the most recent season of ‘This Land’ released in August of 2021, Rebecca Nagle, a native activist, and podcaster outlines the History of the Indian Child Welfare Act and its involvement in a recent 2018 Supreme Court Case.

The Indian Child Welfare Act was created in reaction to the centuries of systemic childhood separation of Native children from their indigenous communities. Throughout the 1800s and 1900s, over a third of native children were forcibly removed and sent to “boarding schools” designed to re-educate them and strip them of their native identity. Following this time, in the ’50s and ’60s, the government enacted policies that purposefully placed native children with white families.

In 1978, in response to the large percentage of indigenous children who had been adopted outside of their traditional homes and tribes, Congress held hearings to discuss the Indian Child Welfare Bill. During testimony heard by the House Committee for Interior and Insular Affairs, lawyers revealed that the per capita rate for Indigenous children in foster care was nearly 18 times higher than other populations. The tribes involved in this case demonstrated the Welfare System lacks an understanding of Indigenous culture and the emotional role in the wellbeing of Indigenous children. Additionally, they noted how these separations play a crucial part in the erasure of native tribes. Finally, the tribes proved that what was in the best interest of non-native children was not necessarily in the best interests of native children.

During congressional hearings and consideration, religious and welfare parties raised opposition. However, ultimately Congress pushed the bill forward. The bill sets minimum federal standards for all custody proceedings involving a Native child, meaning no state courts will have the jurisdiction to proceed with adoption, foster care, and termination of parental rights cases involving Native children. Therefore, all cases are handled within the child’s tribe, giving their respective tribal courts sole jurisdiction.

Supreme Court and Brackeen v. Haaland

Most recently, the Indian Child Welfare Act was the topic of the Brackeen v. Haaland Supreme Court case. In 2016, a Navajo and Cherokee baby was placed with a white family after his mother was found to be a drug user. In 2017, all parental rights were terminated by a Texas court. The Navajo nation attempted to place him with a Navajo family, but when that failed, the Brackeen’s finally adopted him while filing a federal lawsuit against the ICWA. The case threatens to dismantle tribal sovereignty in this country. The Brackeen’s are arguing that the law holds racial prejudice. Ultimately, this Supreme Court case threatens the Indian Child Welfare act as we know it today.

To learn more about Brackeen v. Haaland and the ICWA you can listen to Rebecca Nagle’s podcast, ‘This Land’.

I. Roxanna Asgarian, “How a White Evangelical Family Could Dismantle Adoption Protections for Native Children” VOX, Feb. 20, 2020. https://www.vox.com/identities/2020/2/20/21131387/indian-child-welfare-a...

II. Stefano Kotsonis, “In 'This Land,' A Custody Trial Over Native Children Heads To The Supreme Court” WBUR, Sept. 21, 2021. https://www.wbur.org/onpoint/2021/09/14/custody-case-investigates-native...

III. National Indian Child Welfare Association, “About ICWA” NICWA, Oct. 4th, 2021. https://www.nicwa.org/about-icwa/

IV. Chuck Carroll, “Both Sides Ask Supreme Court to Decide Fate of Indian Child Welfare Act” Imprint News, Sept. 8th, 2021. https://imprintnews.org/child-welfare-2/supreme-court-asked-decide-fate-...