The Supreme Court Must Protect ICWA to Avoid Added Risk for Native Children

Like all of us here at Partnership With Native Americans (PWNA), I am committed to the well-being of Native American children. But Brackeen vs. Haaland and the upcoming Supreme Court review of the constitutionality of the Indian Child Welfare Act (ICWA) may put Native children at risk. Prior to joining PWNA, I worked with after-school, youth and foster care programs and volunteered for the Kansas court-based Citizen Review Board for child welfare, so this issue is near and dear to my heart.

Congress passed ICWA in 1978 in response to two factors: the steady and often unwarranted removal of Native youth from their families and tribes, and studies showing that such removal leaves the children with identity issues… growing up not knowing who they are, who they’re connected to and where they belong. In a 1977 Senate committee hearing, Chairman James Abourezk (D-SD) said “welfare agencies appeared to be acting on the idea that ‘most Indian children would really be better off growing up non-Indian.’”

If the Supreme Court overturns ICWA, Native children would lose the very protections that keep them connected to their families, heritage and culture. Tribal communities would also lose their future generations. Scores of states, tribes and child welfare agencies realize this, and support the Protect ICWA Campaign launched by the National Indian Child Welfare Association ,the Native American Rights Fund, the National Congress of American Indians and the Association of American Indian Affairs.

Even with ICWA, Native children are much more likely to be put into foster care than whites. They represent just 1 percent of children in the country yet 2.6 percent of children placed in foster care. Opening Native placements to non-Native families will amplify the historical trauma caused by colonization and add new generational risk going forward.

Challenging the constitutionality of ICWA only muddies the waters. One claim is that ICWA racially discriminates against non-Native foster families. Another claim goes to whether Congress has power over state child-custody proceedings based on whether a child is Native (or power to enforce states to follow the regulation). Conversely, many argue that ICWA is not based on race but on the political relationship between the U.S. government and tribes as sovereign nations.

If ICWA is overturned, who will benefit? It certainly won’t be the children. In fact, even new BIA guidelines reportedly state that ‘the best interest of the child is not a consideration.” In some ways, a reversal of ICWA would be akin to the forced removal of children from their families and communities, only to put them in Indian boarding schools – many never to be seen again. What then is the motivation behind reviewing a 44-year-old law and precedent?

Nearly 500 tribes, hundreds of supporters, and even 87 members of Congress support ICWA as the abiding standard in Native child welfare. PWNA joins them in supporting the rights of tribes as sovereign nations and the need prevent any further cultural erasure among Native children, families and tribes.