Provisions of Indian Child Welfare Act Need Support
By Paul R. Pace
In the late 1960s and early 1970s, about one-third of Native American children were taken into the child welfare system, and 85 percent of their placements were outside their families and communities — even when fit and willing relatives were available, says Meschelle Linjean, MSW. Ninety percent of associated adoptions were with non-Native families.
“These child welfare decisions stemmed from a history of assimilation as policy, and were grounded in bias and lack of understanding of Native cultures and childbearing practices.... They were associated with harms to both the children and their tribal communities,” Linjean says. “There is no resource more vital to the continued existence and integrity of tribal nations than their children.”
This practice led to activism and the eventual passage of the Indian Child Welfare Act (ICWA) in 1978. It recognizes that cultural continuity is in the child’s best interest and mandates cultural preferences, says Linjean, graduate research assistant at the University of Buffalo School of Social Work, SUNY.
More specifically, first preference is placement with a child’s extended family. The second preference is with the child’s tribe or foster home approved by the tribe, and the third is Native homes outside the child’s tribe.
These are some of the details in the NASW Specialty Practice Sections webinar, The Indian Child Welfare Act (ICWA): Why It’s Needed, What’s at Stake, and What We Can Do, available at the Social Work Online CE Institute.
Linjean notes she and Hilary N. Weaver, DSW, professor and associate dean for Diversity, Equity and Inclusion in the School of Social Work at the University at Buffalo, developed the presentation.
“Understanding tribal sovereignty is essential to understanding ICWA,” Linjean says. This sovereignty is recognized in the nearly 400 treaties between tribal nations and the United States as well as the U.S. Constitution. The law, however, has had inadequate funding and training, which has impeded its implementation. As a result, Native children are four times more likely than white children to be removed by state child welfare systems, even when their families have similar presenting problems.
Not all state laws are the same when it comes to enforcing ICWA. The federal law establishes the minimum standards for the removal and placement of Native children. Some states enhance the federal law by mandating that tribes be notified of proceedings that are deemed voluntary, such as private adoptions. The federal law only requires notification for involuntary proceedings. That law states that tribes may intervene in what are deemed voluntary proceedings, even if they are not required to be notified.
Linjean also discusses anti-ICWA efforts, including the most recent legal challenge to the law, which the U.S. Supreme Court recently ruled on.
In Brackeen v. Haaland, according to the Associated Press, three white families, the state of Texas and a small number of other states claimed the ICWA is based on race and is unconstitutional under the equal protection clause. They also claimed ICWA puts the interests of tribes ahead of children and improperly allows the federal government too much power over adoptions and foster placements, areas that typically are under state control.
The lead plaintiffs in the U.S. Supreme Court case—Chad and Jennifer Brackeen of Fort Worth, Texas—adopted a Native American child after a prolonged legal fight with the Navajo Nation, one of the two largest Native American tribes, based in the Southwest. The Brackeens are trying to adopt the boy’s half-sister, now 4, who has lived with them since infancy. The Navajo Nation opposed that adoption, according to the AP.
In June, a majority of U.S. Supreme Court justices ruled to preserve the provisions of ICWA. The AP noted that three-quarters of the 574 federally recognized tribes in the country and nearly two dozen state attorneys general across the political spectrum had called on the high court to uphold the law.