The Supreme Court is set to hear arguments on the constitutionality of a 1978 law enacted to protect Native American children in the US and strengthen their families. This law, the Indian Child Welfare Act, was originally passed by Congress in response to requests from tribal leaders and other Native American advocates to stop states from removing Indian children from their families. Now, in the case before the Supreme Court, non-Indians seeking to adopt or foster Indian children have challenged the provisions of the law. Non-Indians say the law illegally discriminates against Indian children based on their race and tells state officials what to do. As a federal Indian legal scholar and the mother of two Indian children, I know that Indian status is a political, not a racial designation. The case threatens to overturn the social and health benefits that Indigenous children experience growing up in their tribal cultures. It could also limit the ability of Congress to enact laws affecting tribal governments and their citizens.
Native American welfare crisis
In the 1970s, Native American tribes petitioned Congress for help because many state governments were removing Native American children from their families and communities and placing them in homes with white families. State welfare agencies often permanently removed children from Native families without evidence of harm or neglect because they did not understand Native cultural and parenting practices. At times, social workers even used violence to remove children from their families. This was between 25% and 35% of all Native American children, and 90% of those removed were sent to be raised by non-Indian families. In Minnesota, for example, the state removed Indian children from their families for foster care or permanent adoption at five times the rate of non-Indian children. In South Dakota and Montana, Indian children were 13 times more likely to be placed in foster care than non-Indian children. And in Washington state, the adoption rate was 19 times higher and the foster care placement rate 10 times higher for Indian children than non-Indian children. The story continues As a result of these policies and practices, many Indian adults and children are traumatized by the loss of relationships with their families and culture. This forced separation led many of them to struggle with addiction and violence throughout their lives. Some Indian children spent years trying to reclaim their Indian identity and reconnect with their tribal communities. Many others never made it home to see their families or communities again. This was the situation that the Indian Child Welfare Act aimed to address.
The law, explained
The law first defines the government-to-government relationship that Native American nations have with the United States. Each is a sovereign nation dealing with the government of the other. As explained in the law, the United States government has a trust or duty to protect Native lands, sovereignty, and peoples, based on treaties, statutes, and judicial decisions. Setting a goal of reducing the number of children removed from their native families and communities, the Act “declares that it is the policy of this Nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families’ and goes on to say that ‘there is no resource more vital to the continued existence and integrity of Indian tribes than their children’. The law covers foster care placements, pre-adoptions, termination of parental rights and adoption placements, but not custody disputes between parents. Defines Indian children as citizens or children eligible for enrollment as citizens in a tribal nation. When an Indian child lives on a reservation, the law states that tribal courts must decide the child’s placement, including whether to remove the child from his or her family in the first place. The tribal court may place the child with a non-Native relative or non-Native family. When an Indian child does not live on a reservation, either the state or tribal government can decide the child’s placement. If requested by a parent or tribe, state courts must transfer child custody cases to tribal court, with some limited exceptions. The law sets uniform standards for courts to follow when deciding Indian child welfare cases. These standards include provisions to ensure that tribal governments know and can have a say in the placement of Indian children. They aim to reduce the trauma of family and clan separation by instructing the courts to make active efforts to keep families together. These standards include recommending that courts place children with their relatives—whether Indian or non-Indian—with someone from their tribe or an Indian family, if possible. The family preservation and reunification preferences pioneered in this law represent the gold standard for child welfare, according to experts in social work, psychology and family law. They agree that family reunification promotes the best outcomes for all children and that maintaining family and community connections best serves the child’s needs. Studies show that Indigenous children who grow up in Indigenous homes have higher rates of self-esteem and are less likely to suffer from depression or substance abuse or to commit suicide.
Failure to comply with the law
However, in the 40-plus years since its enactment, states routinely fail to comply with the law. For example, in 2015, a federal judge ordered the state of South Dakota to comply with the law after the state failed to provide parents with adequate notice and custody hearings. Many state social workers and family court judges lack training and knowledge of the law. Some don’t understand the damage Indian children experience when they don’t grow up with their culture. Others believe that the financial benefits that non-Indian parents can provide are in the child’s best interest and overlook the benefits that Indian children receive from being raised in their cultures and communities. The US government does not keep records of the implementation of the law or monitor compliance with it. Data available from the Casey Foundation, which advocates for “the well-being of children, families and the communities where they live,” show that states vary in their efforts to follow the law. Some have adopted state laws to require compliance, but others have yet to fully adopt the law. The law’s uneven application has undermined its ability to prevent family separation. Recent studies show that Indian children are still overrepresented in the foster care system. A 2021 report found that Indian children disproportionately enter the child welfare system and are removed from their homes at up to three times the rate of white children. The National Indian Child Welfare Association has reported similarly high rates of indigenous children in the foster care system. Poor, often nonexistent, enforcement coupled with recent constitutional challenges to the law suggest a lack of public awareness of the law and the harms it was intended to correct. This lack of understanding allowed non-Natives to criticize the law as unconstitutional. Now the Supreme Court has agreed to hear their claims and will decide whether Indian children will continue to reap the benefits of growing up knowing their indigenous cultures and communities. This article is republished from The Conversation, a non-profit news website dedicated to the exchange of ideas by academic experts. If you found this interesting, you can subscribe to our weekly newsletter. Written by: Kirsten Matoy Carlson, Wayne State University. Read more: Kirsten Matoy Carlson does not work for, consult with, own stock in, or receive funding from any company or organization that would benefit from this article and has disclosed no relevant relationships beyond their academic appointment.
