According to a recent article in Indianz.com, “one of the biggest threats facing tribal sovereignty are the coordinated attacks on the Indian Child Welfare Act.”
Enacted in 1978, the Indian Child Welfare Act (ICWA), intends “…to protect the best interest of Indian Children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children and placement of such children in homes which will reflect the unique values of Indian culture… “(25 U.S. C. 1902). ICWA provides guidance to States regarding the handling of child abuse and neglect and adoption cases involving Native children and sets minimum standards for the handling of these cases.” (Bureau of Indian Affairs).
At the time of its passage, many Native communities were experiencing an epidemic of out-adoption of their children to non-Native families through the intervention of state and private adoption agencies. A staggering 25%-35% of Native children had been removed from the homes of their parents, and of these, some 85% were re-located outside their home communities.
Today, there are efforts underway in the courts to strip ICWA of its regulatory muscle.
On October 4, Reed O’Connor, a federal circuit judge in Texas, handed down a decision in a civil action brought by Texas, Louisiana, Indiana that characterized ICWA as a “race-based statute” that doesn’t meet the “strict scrutiny” required for such laws.
“If ICWA is struck down in whole or in part, the victims will be our children and our families, Native children and Native families”—Cherokee, Oneida, Quinault Nations.
Supporters of the Indian Child Welfare Act at the National Indian Child Welfare Association (NICWA) argue that in order to arrive at his decision, O’Conner “had to ignore decades of federal court precedent that affirmed inherent tribal sovereignty and the government-to-government relationship between tribal nations and the United States as enshrined in the U.S. Constitution, countless federal laws, and treaties between tribal nations and the U.S. government.”
In a statement, the group offered their assessment of the Judge’s rulling:
NICWA is . . . concerned how this will impact tribal-state relations and ongoing efforts to implement ICWA’s 2016 regulations. This includes efforts underway between states and tribes to develop intergovernmental agreements, enforce state ICWA laws, participate in court collaborations, train caseworkers and attorneys, share program resources and information, and support administrative policy development. With increasing cooperation between states and tribes to implement ICWA, there are very serious questions about how this will impact the progress being made and the potential to return to widespread increases in the number of vulnerable Native children being removed from their homes and communities.
The Repatriation Files shares these concerns.
Tribal leaders and tribal citizens at the 75th anniversary of the National Congress of American Indians in Denver, Colorado, on October 24, 2018, where they heard from Sarah Kastelic, the executive director of the NICWA. Photo by Indianz.Com
Sources: ‘Intentional and direct attack’: Tribes vow fight for Indian Child Welfare Act
https://www.nicwa.org/wp-content/uploads/2018/10/Setting-the-Record-Straight-2018.pdf
