ICWA Under Fire

40 years of protections for Native children and families may be repealed
Date: 11/06/2018

40 years of protections for Native children and families may be repealed


Since the earliest origins of the United States, Native lives have been threatened and abused at the hands of an invading, colonial government — from massacres, to boarding schools, to the outright suppression of basic human rights. Now, our judicial system is threatening the young lives of Native American children by challenging one of the few laws that protects not only children, but the future of Native communities throughout this country.

The Indian Child Welfare Act (ICWA) was signed into federal law in 1978 as a response to the extremely high number of Native American children being taken from their homes and tribes and placed into non-Native families for foster care, adoption, or both. Before the passage of ICWA, 25-35 percent of all Native children were being taken, and 85 percent of those removed were placed outside of their communities and culture. Congress at the time recognized that it is in the best interest of the child to maintain tribal connections to promote the stability and security of Native American tribes and families.

Today, the protections of Native children under ICWA are under fire, and the consequences could be devastating.

If ICWA is struck down in whole or in part, the victims will be our children and our families, Native children and Native families.

Leaders of tribal defendants from Morongo Band of Mission Indians and Cherokee, Onieda, and Quinault nations

In a recent case in Texas, the Brackeen family petitioned to adopt a child born to a Diné mother, and were denied due to ICWA protections. In response, the Attorney General of Texas, Ken Paxton, filed a lawsuit, Brackeen (Texas) v. Zinke, claiming that the Indian Child Welfare Act is unconstitutional because it places the child’s race over their general best interest. Judge Reed O’Connor ruled in favor of the lawsuit earlier this month, claiming that ICWA is unconstitutional in nature and violates the 14th Amendment.

The Goldwater Institute, a conservative/libertarian public policy group based in Arizona, led the case attempting to repeal ICWA in Texas, and has started similar projects in three other states: Ohio, Louisiana, and Indiana. The group’s claim argues that the rights Native children have to equal protections under the law are being currently violated by ICWA.

It just so happens that the Goldwater Institute is funded in large part by President Trump’s biggest campaign donor, the Mercer family.

Brackeen is not the first time ICWA has seen the inside of a courtroom. In previous years, however, ICWA violations were on trial — not the law itself. In 2015, Judge Jeffrey L. Viken of South Dakota confirmed ongoing violations of ICWA law brought to light by the American Civil Liberties Union. The court found that children were being removed from their homes and put on trial within 48 hours of removal and denied the right to representation. Parents of the children were routinely denied the right to counsel or call to witness for trials often lasting fewer than five minutes. In 100 percent of these trials, the state won the case.


The law states that if a Native child is to be taken from their home, the child must be placed with extended family, tribal members, or other families within their tribal nation. The child must also be identified as an Native American child, which is a distinction that can only be made the the tribe itself. Additionally, the tribe, child, and guardian of the child have a right to intervene at any time, including transferring the proceedings to tribal court upon request. These guidelines, and others, were often bypassed in court proceedings when determining the placement of Native children to new homes.

Upon the removal of protections by the Indian Child Welfare Act, the civil rights violations faced by Native nations could continue to get worse, with situations like South Dakota’s becoming the norm.

In the United States, Native Americans only make up 2 percent of the population, and Native children occupy 2 percent of foster youth throughout the country. According to the American Academy of Child and Adolescent Psychiatry, nearly 90 percent of Native American children removed from their respective tribes are currently being placed into non-Native homes. In 1980, Congress enacted an amendment to Title IV of the Social Security Act, imparting Part E, which began a federal-funded, open ended program to provide state funds for foster care and adoptive services programs in reservation communities. The tribes were granted funds only if they were willing to sign a contractual agreement with their states of residence. Just prior to this, in 1997, Congress enacted the Adoption and Safe Families Act (ASFA), which allowed states to place children in foster care after being defined as “abused and neglected,” placing even greater pressure on already impoverished communities.

When Native children are branded as different than the general population, as was done in South Dakota, issues that they already faced are compounded in disastrous ways.

Beyond the traumatic nature of being removed from one’s family, the placement of Native children in a non-Native community deeply affects a child’s cultural socialization and internal beliefs about their place in the world. Cultural socialization refers to the ways that parents and guardians address racial and ethnic issues within their families, specifically the way that cultural beliefs, rituals, and traditions are communicated to the child, and the extent to which the child internalizes these messages. Cultural values, assumptions, and beliefs often affect how psychological distress is expressed by marginalized populations.

In other words, when you remove a child from their roots, bad things happen.

Furthermore, once in foster care, Native children can, and often are, over-prescribed psychoactive drugs. Funding for prescriptions has nearly doubled between 2005 and 2006. This is part of the over 9 billion dollars spent every year by the government on foster care costs, a number likely to rise with the unjustified displacement of Native children into non-Native foster care.

“If ICWA is struck down in whole or in part, the victims will be our children and our families, Native children and Native families,” the leaders of tribal defendants from the Morongo Band of Mission Indians and the Cherokee, Onieda, and Quinault nations said in a recent press release.

With the recent appointment of Trump appointee Brett Kavanaugh, if the case was brought before the U.S. Supreme Court today, it is a likely bet that there would be a 5-4 decision to repeal the protections of children under ICWA. With an already overcrowded foster care system, and overuse of prescription drugs on foster youth, this would create a massive strain on Native communities. Upon removal of the rights of Native children under ICWA, Native families would continue to be ripped apart at disproportionate rates.

Yet another assault on Indian Country by the current federal judicial system, this latest effort to undermine the rights of Native people cannot go unchallenged. Please stay up to date on this news and more by following Lakota People’s Law Project on our social media channels: @lakotalaw on Twitter and @LakotaPeoplesLawProject on Facebook.

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