Critics distort Indian child welfare law

In the years leading up to the 1978 passage of the Indian Child Welfare Act, congressional hearings revealed a disturbing pattern of abusive child welfare practices by county and state agencies, resulting in the "wholesale removal" of Native American children from their parents and tribes. A staggering 25 to 35 percent of all Native American children were taken from their homes and put into foster care, adoptive homes, or institutions such as boarding schools. See Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 32 (1989). The vast majority of these children were placed with non-Indians.

The removals, which Congress acknowledged were "often unwarranted," resulted in tremendous harm to tribal communities. 25 U.S.C. Section 1901(4). The emotional damage suffered by children, separated from their families and placed in homes where they learned nothing of their tribes, heritage or identity, frequently led to "serious adjustment problems" as they reached adolescence, and hampered their ability as adults to positively contribute to their tribal communities. Holyfield at 33. Families were left in extended mourning. Tribes were deprived of future leaders and citizens to sustain their governments, cultural and religious values, and community stability.

Congress concluded that the Indian child welfare crisis was of massive proportions and that Native American families faced far greater risks of involuntary separation than are typical for society as a whole. A primary cause of this crisis was the lack of understanding by county and state agencies and courts of Native American ways of life -- their political structures, social and cultural norms, and views of familial and community relationships. 25 U.S.C. Section 1901(5).

Among the remedies set forth in the ICWA is a policy of placing Native American children in homes which "reflect the unique values of Indian culture." 25 U.S.C. Section 1902. Unfortunately, the purpose of that policy is often poorly understood, even by those who regularly practice in child welfare. (The ICWA applies to other types of cases, such as guardianships and voluntary adoptions, but the majority of cases involving it are dependencies.) The "best interests of the child" standard is a foundation of dependency law, but the idea that a Native American child's best interests include nurturing a connection to his or her tribe and heritage is too frequently undervalued.

Opponents of the ICWA claim it is federal overreach, or an impermissible racial classification. It is neither. Congressional authority to legislate with respect to Indian tribes has been well-established since the Supreme Court's Marshall Trilogy almost two centuries ago -- Worcester v. Georgia in particular. 31 U.S. (6 Pet.) 515 (1832). And while Native American ancestry is typically a prerequisite to eligibility for tribal membership, it does not follow that the ICWA extends to all persons with such ancestry. Tribes determine their own membership criteria, and many people who have some Native American ancestry may not qualify for membership in a tribe. In addition, citizenship in a federally recognized tribe is a political status, not a racial one, a fact which the Supreme Court recognized four years before the ICWA was enacted. Morton v. Mancari, 417 U.S. 535 (1974). The ICWA applies only to children who are members of, or eligible for membership in, federally recognized tribes.

While the ICWA has its detractors, numerous national child welfare organizations tout it as the "gold standard," including the Child Welfare League of America, the National Association of Social Workers, the National CASA Association, and Casey Family Programs and the Annie E. Casey Foundation. It promotes placement of Indian children with their relatives, where children generally are better able to cope with separation from their parents. It requires that meaningful attempts be made to reunify the family before out-of-home placement is ordered, something every child deserves. And its recognition of the Indian child's political status, and the lifelong importance of culture and community, demonstrates that the ICWA considers the entire child, not simply a snapshot in time. This more inclusive view of the child's best interests actually enhances his or her long-term opportunities for success.