Native Americans have lived in North America since time immemorial and have a special relationship with the United States government. The 562 federally recognized tribal nations that exist in the United States are recognized as sovereign nations, meaning they have sovereignty over their lands, resources, and citizens. In light of all of this, a recent legal ruling on the Indian Child Welfare Act (ICWA) is very troubling and is a direct threat to Native American families and tribal sovereignty.
ICWA is a federal law passed in 1978 in response to the alarmingly high number of Native American children being removed from their homes by both public and private agencies. The intent of Congress under ICWA was to “protect the best interests of Indian children and to promote the stability and security of Indian tribes and families.”
ICWA sets federal requirements that apply to state foster care, guardianship, termination of parental rights, and adoption proceedings involving an Indian child who is a member of a federally recognized tribe. When ICWA applies to a child’s case, the child’s tribe and parents or Native American custodian have an opportunity to be involved in decisions affecting services and placement decisions for the Indian child. ICWA sets federal requirements about removal and placement of Indian children in foster care, guardianship, or adoptive homes. It requires that a child with a Native background should be placed first with extended family, then other members of the child’s own tribe, then other Native people, and, if none of those options are available, any other fit placement. Keeping Native children with Native families is important to the well-being of both children and tribal communities. Doing so ensures Native children remain connected to their families, cultures, and communities— something that is needed to help overcome the policies our nation once imposed on Native communities that sought to destroy their communities and culture.
However, ICWA is at risk. Last month a Northern Texas federal district court struck down portions of the law, finding that it violates the Fifth Amendment’s equal protection guarantee by “mandating racial preferences.” The Judge ruled that ICWA categorizes children in the child welfare system according to race, not membership or eligibility for citizenship in a tribe, making those provisions illegal racial preferences. The judge rejected arguments based on case law saying American Indian status is a matter of political affiliation with a tribal government rather than race. He also struck down a portion of ICWA that gives tribal nations the right to intervene in child welfare proceedings.
This decision is very troubling because it ignores the direct federal government-to-government relationship with sovereign Indian nations and decades of precedent that have upheld tribal sovereignty and the rights of Native American children and families. Not only is Kids Forward very concerned about the potential of this ruling to erode ICWA’s primary goal of promoting family stability and integrity, we are also concerned that this ruling could be used to chip away at the legal basis of tribal sovereignty for people whose nationhood predates the United States by tens of thousands of years.
Ken Taylor
