Indian Child Welfare Act (ICWA) was established in 1978. This is one of the most significant policies that helps prevent further cultural genocide of Native Americans. Native children have a longstanding history of being disproportionately removed from their families.
The significance of ICWA is best understood through a historical lens. The years of injustices began when Columbus first arrived and took advantage of the assistance from indigenous peoples. The story of the pilgrims, famine, and thanksgiving is for another time. But, the mass erasure of Native culture has been a longstanding issue within the US Government. Boarding schools, which American education has failed to teach almost all of us about, were built with the specific purpose of erasing Native culture. United States police would show up to parents homes and enforce that their children should be sent to a boarding school. If the request was denied, the family would lose their food rations and face potential criminal charges or incarceration. This misuse of power and manipulation tactic caused many, many children to be sent to boarding schools unjustly. Children in boarding schools were not only frequently abused (physically, emotionally, and sexually) but a large amount of this abuse occurred if the children spoke their native tongue or practiced their cultural or spiritual beliefs. The goal of this was genocide.
I worked on a Reservation in 2017 and a quote was shared with me that resonates so deeply the exact hatred that filled so many 'leaders' minds - “A great general has said that the only good Indian is a dead one, and that high sanction of his destruction has been an enormous factor in promoting Indian massacres. In a sense, I agree with the sentiment, but only in this: that all the Indian there is in the race should be dead. Kill the Indian in him, and save the man" (Richard Pratt, 1892). Pratt was the superintendent of a boarding school. (Kill. The. Indian. Save. The. Man... how FOUL?). 90% of Indigenous people in the United States were massacred to date. According to a 2019 study - that is about 55 million people. This continues to this day, as missing and murdered indigenous women (and people as a whole) is an ongoing criminal justice and social justice issue that is not being resolved through legislature.
Child Welfare is a difficult field. The juxtapositions within the field are enormous and it is not something I will go into detail about at this time. However, ICWA is insanely important and often overlooked if not on tribal land. The goal of ICWA is to do whatever possible to place children in foster care with relatives, members of their origin tribe, or members of another indigenous tribe - whenever possible. In that order. Last resort - non relative stateside placement or residential facility. This is to promote cultural retention. Once a child is adopted out of the community, or placed under Guardianship, it is a hope that the permanent family will continue attending tribal events and ensuring cultural enrichment for the child to grow to embrace and know their culture. Though, there is no guarantee that this will happen. ICWA at a minimum is a safeguard for trying to maintain the populations cultural and familial ties for situations where a child cannot safely remain with biological parents.
ICWA is considered the "gold standard" within child welfare practices. There is a higher level of legal standard to prove the need for out-of-home care. Active efforts is the level of burden for social services in these cases to prevent the breakup of families in the even that the legal standard is met. ICWA is a protection for the tribe, the family, and the child. It allows the tribe to have legal decision making regarding the child's care and ensure cultural integrity. There are some arguments against ICWA - though not culturally or historically informed arguments.
A large number of Native children are removed due to neglect. Neglect is defined as depriving a child of their basic needs, such as the failure to provide adequate supervision, health care, clothing, or housing, as well as other physical, emotional, social, educational, and safety needs. (This fails to account for generational poverty and trauma that contributes to the high level of need - which is not generally met through formal supports... causing disproportionate removals due to generational neglect).
Haaland v. Brackeen: A case that has now made its way to the supreme court, pending oral arguments. This case opened in Texas and is now backed by several states with similar cases. The supreme court determined on February 28th, 2022 that they will be reviewing the constitutionality of ICWA.
Haaland v. Brackeen presents the argument that ICWA is racially discriminating. That not allowing a white, or whatever non-tribal affiliated individual, to adopt a native child is racist and violating the 14th amendment (in the most simple, blunt way to explain this). On the opposing argument - ICWA is a political agreement. Which...logically... Indigenous Sovereignty is a political agreement. It is a right for tribes to govern their own federally recognized nations. Native American is traditionally not considered a race but a culture, and protections under this classification are based on enrollment (cue…blood quantum determination). This was already previous debate, and the court ruled in favor of tribes. The fact that this idea is even in question again - unfathomable. ICWA contributes to their right to maintain the dignity of their culture and their livelihood. If the supreme court rules in favor of Brackeen, then this would rule that ICWA is racially discriminatory and does not support the 14th amendment. Oral arguments have not been scheduled at this time, but are allegedly anticipated for roughly June 2022.
The remaining 10% of the population should be treasured and respected. (Just as the other 90% should have been, but we cannot go back in time. The only thing we can do now is DO BETTER as a nation). The next generation is our hope for a better future. Native youth undeniably included. Ensuring that as many children remain involved with their culture is essential. ICWA being abolished would undeniably cause an intense dissemination of other policies and legislation built to protect the tribes. This would be catastrophic.
The purpose of this article is to in a basic sense, explain ICWA and how Haaland vs. Brackeen can have long lasting impact on the future of Federally Recognized Tribes. The actual history of Native Americans and cultural genocide is not common knowledge of many Americans and it is extremely imperative that more people are educated or aware of this issue.
I am not native and it is not my honor to share or educate about a culture I do not belong to, especially because I will never understand the experiences of those involved. I can say that the stupid, nasty stereotypes are total BS. Pocahontas is not a good story, either. Indigenous culture is beautiful and inherently worth protection - if you take the chance to understand and know it. Tribes vary, but their cultural practices are so enriching to learn about. I highly recommend reaching out to the tribes or tribal members to learn about their culture. I also recommend listening to Rebecca Nagle's"This Land" Podcast for more information.
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