The ICWA: A Landmark Law In Jeopardy

The fate of an integral law, the Indian Child Welfare Act (ICWA), is in the hands of the U.S. Supreme Court this Spring. The court’s ruling could significantly alter Native communities nationwide, destroying years of efforts in building tribal sovereignty and preservation.

Does The ICWA Categorize Children & Parents?

For Native Americans, the ICWA is a way to protect their families and children. Still, several current and prospective adoptive parents (and the state of Texas) argue the Act is unconstitutional.

The family at the heart of this trial is Jennifer and Chad Brackeen (a White couple) and their lawyer, Matthew McGill. To the Brackeens and McGill, the law is unconstitutional because it is based on racial preference (more on this later).

McGill argues the ICWA “categorizes” children and parents “based on whether they are Indian” or not Indian. Further, McGill attests the law is flawed because it “deprives children of an individualized assessment of their own best interest,” a situation he determines a “real injustice.”

Regarding the Brackeens, the family has already adopted one Native child with Cherokee and Navajo roots (with the tribe’s approval because all other living options were considered unfit). However, when the Brackeens made steps to adopt the boy’s little sister after she was placed in foster care, they were met with disapproval from the Navajo tribe and the girl’s great aunt.

While the Brackeens’ disappointment and legal steps can be appreciated (from a certain perspective), what seems to be missing is the understanding of the repercussions Native children face when they grow up away from their tribal community.

What Is The ICWA?

The Indian Child Welfare Act of 1978 (ICWA) requires state courts to actively protect Native children by keeping Native families and communities together. Unlike a majority of family structures in the U.S., Native communities rely heavily on their extended families and work together to raise their children.

In 1978, numerous hearings found that both public and private agencies had taken hundreds of thousands of Indigenous children from their homes. Oftentimes, these children were taken by force, literally ripped away from their families.

According to the chief of the Cherokee Nation, Chuck Hoskin Jr., approximately “a third of Native children were adopted away through child welfare agency actions.” Making matters worse was the fact that most of these children were adopted outside of tribal families.

Naturally, Native communities viewed these child welfare agency actions as a threat to their existence. And in response, the ICWA was passed.

The law requires state courts to notify tribes when a child is removed outside of a reservation and implements a foster and adoption framework. The requirements state the first living preference to be given to a member of the child’s extended family, then other tribe members.

Tribal Ties Determine Everything

From a Native community’s perspective, the ICWA holds great value. Without it, these families risk losing one of the pillars of their culture: community ties.

“For Native people, family is the most important thing. That kinship, that clan system, determines everything,” Chris Stearns attests. As a child, Stearns, a Native American, was adopted by a loving White family in the 1960s. Despite growing up in a healthy environment, Stearns longed to connect with his tribal roots.

And that’s the ICWA’s mission; to prevent this disconnection and identity crisis when Native children are not surrounded by their community.

So let’s go back to McGill’s arguments against the ICWA: the lawyer attests the law is based on race and is unwilling to provide children with individualized assessments.

Although the law may seem based on race, the word never actually appears in the original law. And more importantly, the ICWA is based on maintaining the very existence of Native communities, not categorizing people.

Kathryn Fort, the director of the Indian Law Clinic at MSU, was quick to disregard McGill’s second dispute. Fort ensures each case involving the ICWA includes an individualized assessment. These assessments are based on the child’s relationship with their relatives, language, religion, and tribal tradition.

Children are considered sacred to their Indigenous tribe. For years, the intense removal of children posed an existential threat to Native communities, harming their ability to grow and govern themselves. The ICWA is one piece of legislation designed to prevent that from happening ever again.

Let us know what you think about the ICWA in the comments section! And share this post to educate others about Native history and cultural values.