The Indian Child Welfare Act (ICWA) was passed in 1978 to prevent states from systematically removing Native American children from their families and placing them in non-Native foster environments. The law was meant to end a long tradition of imposing mainstream, American values on Native American kids. The act affirms the value of tribal and family cohesion, stating that nothing is "more vital to the continued existence and integrity of Indian tribes than their children." Among the law's chief components is a provision which mandates that state officials must make every effort to keep Native children with their parents or relatives before removing them into state custody.
An alarmingly high percentage of Native American children are still being placed in non-Native foster homes and institutions nationwide. This problem is particularly bad in South Dakota, one of 32 states found to be in systematic violation of ICWA. Nine out of every ten Native American children in state foster care live under non-Native guardianship.
Section 1915 of ICWA—one of the chief remedial provisions of the act—says that priority must be given to placing Native American foster children with their relatives or tribes. However, it is not easily enforceable because Congress inadvertently failed to include Section 1915 on the list those that are enforceable in federal court. It was a simple mistake with enormous consequences.
We need to amend ICWA to give lawyers and advocates the ability to enforce the intent of the law. The Lakota People's Law Project has steadily been working toward this goal: during the 2009-2010 congressional session we launched a nationwide initiative to make Section 1915 of ICWA enforceable. Our ICWA Amendment Initiative has received the support of the Great Plains Tribal Chairmen's Association as well as the unanimous endorsement of the National Congress of American Indians. So far, the political will has been lacking to fix the law. Following the 2012 elections we will continue to carry this mantle.
Proposed Amendment to Section 1914 of ICWA ("Enforcement Clause"):
Any Indian child who is the subject of any action for foster care placement or termination of parental rights under State law; any Parent or Indian custodian from whose custody such a child was removed; any individual Indian person to whom custody of such an Indian child was withheld who falls within the definition of an "Indian Person" who is entitled to the "preferred placement" of such an Indian Child; and the Indian child's tribe, may petition any court of competent jurisdiction, including any federal court having lawful venue over any such action, to invalidate such action upon a showing that such action violated any provision of sections 1911, 1912, and 1913, 1915
and1916 of this title. This right of civil action shall be available retroactively to any Indian person whose "right to preferential placement" of such an Indian child provided in this Act was not adequately recognized and given effect by any State Court or State Agency at any time since 1978.