The Future of the Indian Child Welfare Act
By Neoshia Roemer | November 2, 2022
Imagine a scenario where, one by one, your three children are removed from your care. You have not been informed of any legal charges against you. Because you raise your children in your culture, you observe the cultural childrearing practices of your ancestors, and you are poor, state authorities presume that you are a bad parent. Because of your identity, social workers demand you hand over your children or coerce you into terminating your right to parent.
This is the experience Cheryl DeCouteau recounted to Congress in hearings about widespread, forcible separation of American Indian families in 1974. At the time, non-tribal government agencies attempted to assimilate American Indians through a variety of means including placing children in boarding schools, adopting children out to non-Indian families, and relocating American Indian families in urban areas often far from home. These hearings eventually led to the passage of the Indian Child Welfare Act of 1978 (“ICWA”).
The ICWA is perhaps less known in mainstream America than the Roe v Wade decision. However, ICWA is a major piece of federal legislation that advanced reproductive justice for American Indians.
ICWA articulated the rights of Native peoples to raise a family in a safe and healthy environment. This fall, the future of the ICWA will be decided by the Roberts Supreme Court.
History of the Indian Child Welfare Act
Since the mid-19th century, federally backed boarding school and Indian adoption programs aimed to “kill the Indian to save the man.” By the 1970s, approximately 25-35% of all Indian children were removed from their homes. A combination of federal policy, private agency action, and state child welfare systems effectively deprived American Indian parents of the right to have families and exercise their reproductive autonomy.
One of ICWA’s goals was to prevent the breakup of the Indian family by ensuring that parents in involuntary child welfare proceedings receive due process and culturally appropriate services.
In simple terms, this means that when American Indian families enter the child welfare system, ICWA mandates tribal jurisdiction and involvement and culturally appropriate services to help parents onto their feet and to keep families intact. ICWA created important legal mechanisms to address the ways federal and state government had historically separated an especially vulnerable population. ICWA aims to keep Indian families together where possible.
Indeed, Casey Family Programs considers ICWA a gold standard for child welfare. As Marcia Zug notes, ICWA has always had the same goals in mind: prevent the breakup of the Indian family and promote tribal self-governance. Perhaps Indian parents need services and support, as do most families who enter the family regulation system. Often, however, tribal communities are best suited to support tribal member parents and children through culturally and situationally appropriate services. Tribal social services require the same types of services as state social services in child welfare cases, such as counseling, substance abuse treatment, and parenting classes. These services are more likely to speak to the direct needs of their community member clients as both parents and members of the community. In addition to these services, some tribal communities may also include cultural practices as part of a family reunification process.
Indian Child Welfare Act as Reproductive Justice
By instituting safeguards on Indian parents’ rights, the ICWA has been a tool in the fight for reproductive justice for American Indians.
The reproductive justice rights framework posits that all human beings possess three rights: the right to not have a child, the right to have a child, and the right to raise a child in a safe and healthy environment. Reproductive justice requires intersectional frameworks that respond to the needs of individuals who experience challenges to reproductive autonomy in a variety of ways.
As many have noted, feminist advocacy has often focused on the right to not have a child, or access to contraception and abortion. By focusing on the right to not have a child, the feminist movement did not always speak to the concerns of American Indian women and people. A reproductive justice framework applied to American Indians recognizes that Indian families deserve to have children and exist in safe and healthy environments.
ICWA and Family Regulation
ICWA also mitigates against racial and class inequalities and surveillance embedded in our current child welfare system. As Dorothy Roberts explains, child welfare—or family regulation—investigates and removes Black children from their homes at disproportionate rates. Similar removal patterns hold for Indian children. While family regulation systems originally aimed to prevent child abuse, the practice of identifying abuse, like other police powers in the United States, have been focused on communities of color. By focusing on neglect within specific families, the family regulation system also fails to deal with the structural causes of child poverty.
Since its inception, the Indian Child Welfare Act has been attacked by those who echo the language of a project of cultural genocide.
In our moment, some conservative organizations argue that ICWA prevents “worthy” families from raising Indian children. But what is wrong with Indian parents? Indian families? Indian communities? Is it not the goal of child welfare to provide services to help families, or have we simply been misled about what the goal of the system is? When one starts to ask these questions, the same reasoning that supported “kill the Indian to save the man” reveals itself.
Haaland v. Brackeen
This fall, ICWA is on trial. In Haaland v. Brackeen, the U.S. Supreme Court will hear the claims of three sets of adoptive parents, a biological parent, three states, four Indian tribes, and the federal government. The Court will determine whether ICWA is unconstitutional on potentially three grounds that include arguments such as states’ rights to regulate families, Congress’ ability to pass legislation like ICWA, and whether ICWA is an impermissible race-based statute. The impetus for the Plaintiffs in the original lawsuit is simple and two-fold. Some prospective parents wanted to adopt Indian children and claim that the ICWA is “outdated”, while some states believe that they should not have to implement ICWA at the behest of the federal government. The crux of the argument here is that the USA does not need a law that would protect the reproductive rights and sovereignty of American Indians.
As the Supreme Court considers Brackeen this fall, the public may hear a lot about ICWA. It is imperative to consider what ICWA means for the reproductive justice of American Indians. ICWA is one tool which has allowed tribal communities and families to flourish over the last 45 years. Reproductive justice for American Indians simply does not exist without federal policy to protect the right to parent—a right which has historically been undermined by state and federal government. The ICWA is good for Indian families and for Indian tribes. For reproductive justice advocates, the answer to whether ICWA should be declared unconstitutional should be a resounding no. The ICWA has advanced the reproductive autonomy of Indians and affirmed the collective right to parent.
Neoshia Roemer is Assistant Professor of Law at University of Idaho
Photo credit: “Morris Indian School, Morris, MN” Photographer: J. B. Anderson, Public domain, via Wikimedia Commons