The Indian Child Welfare Act is what’s best for kids

This November, the United States Supreme Court is slated to consider the constitutionality of the Indian Child Welfare Act (ICWA) in Haaland v. Brackeen (Case Nos. 21-276, 21-377, 21-380).

Congress passed ICWA in 1978 to end the forced separation of Indian children from their families and culture and address the appalling history of harm and subsequent trauma experienced by Native communities. (We refer to "Indian children" because this is the term Congress uses to define the children eligible for ICWA protections.) While opponents of ICWA are challenging the statute primarily on Equal Protection and Article I grounds, a common theme that runs through their arguments is that ICWA is somehow harmful to Indian children. As lawyers for children, we know the opposite to be true: ICWA was enacted to "protect the best interests of Indian children," 25 U.S.C. § 1902, and that is exactly what it does.

First, ICWA safeguards the constitutional right to family integrity in child welfare proceedings involving Indian children. Because parents' interest in "the care, custody, and control of their children ... is perhaps the oldest of the fundamental liberty interests" recognized by the Supreme Court, the Constitution limits state intervention in the family. Troxel v. Granville, 530 U.S. 57, 65 (2000). Courts may not remove children and dissolve family ties simply to match children to the "best" resources or because a parent's care does not conform to the court's view of ideal parenting practices. While courts do consider a child's best interest when making placement determinations, ICWA ensures they do so within these well-established constitutional limitations.

ICWA's protections reflect the historical treatment of Indian families and children, the sovereignty of tribes, and the special protection owed to children. ICWA protects families from "unwarranted" removals by ensuring that Indian children are removed from their parents only when necessary to safeguard them from serious harm and that families are reunified when possible. In particular, ICWA prohibits removal of an Indian child into state custody or termination of parental rights unless the state court finds that "active efforts have been made ... to prevent the breakup of the Indian family." 25 U.S.C. § 1912(d). And an Indian child may be removed to state custody or have parental rights terminated only upon a showing that remaining in parental custody "is likely to result in serious emotional or physical damage to the child," supported by testimony by a qualified expert witness. Id. § 1912(e), (f).

When Indian children require foster care or pre-adoptive or adoptive placements, ICWA's placement preferences promote the right to family integrity by prioritizing extended family and other tribal members. Placement with extended family and other caregivers identified by the Indian child's Tribe maintains a network of familiar relationships, maximizing continuity and protecting children facing the trauma of family separation. As the American Bar Association has recognized, "[d]ecades of research confirms that children who cannot remain with their parents thrive when raised by relatives and close family friends, known as kinship care. Children in foster care with relatives have more stable and safe childhoods than children in foster care with non-relatives, with greater likelihood of having a permanent home." Resolution 118 2019A § VI.i. (2019).

Second, ICWA's provisions reflect the same factors that states already direct their courts to consider when making best interests determinations in child welfare proceedings. Along with National Association of Counsel for Children and 30 other children's rights organizations, we submitted an amicus curiae brief in Brackeen reviewing the state statutes that direct courts to consider enumerated factors when making these decisions. The factors identified by these laws align with ICWA's fundamental principles: preserving family integrity, prioritizing placement with relatives, and maintaining community and culture.

ICWA promotes family integrity by establishing a high threshold for removing a child from parental custody. At least twenty-six states and four territories also prioritize family integrity as a guiding principle in their statutes or regulations, and several states guard against government intrusion in family life by including family integrity as a specific factor to be considered as part of a court's best interest determination.

If temporary or permanent removal from parental custody is warranted, ICWA directs state courts to prioritize, but does not mandate, placement with extended family members. Likewise, a majority of states express preference in statute for the placement of a child with relatives, and a number of states include this preference in their statutory guidance for determining a child's best interests.

By prioritizing placement with tribal members and ensuring that Tribes are properly informed of the relevant child welfare proceedings, ICWA preserves maintaining community and culture, including by preserving a connection to the child's tribal identity. Numerous state statutes also direct courts to consider community placement and the child's cultural needs and identity when making best interests determinations. For example, Georgia directs courts to consider the "child's background and ties, including familial, cultural, and religious." Ga. Code Ann. § 15-11-26(12).

From the moment a young person is placed in foster care, everything is at stake: their home, school, belongings, community, and relationships with family and friends. In short, their future. Judicial officers are faced with complex, weighty decisions and need more information - not less--to get it right. ICWA provides courts with the information necessary to make good decisions for Indian children. And because participants in the child welfare system may not have much experience working with Native American children, ICWA ensures the proper application of regular child welfare practices for children who, unlike other youth in the child welfare system, have a particular legal status as a result of their tribal affiliation. There is no doubt: ICWA is what's best for kids.