Child Welfare Myths: Indian Child Welfare Act Protects Indian Children

Fourteen-year-old Veronica Spears, her twelve-year-old sister Hayley and their fifteen-year-old brother have been living with their foster parents Tim and Anne Dorn for nine years. Valerie and Haylie want to be adopted by the Dorns and have set up a Facebook page to tell their story.  Yet, an Indian tribe has asked a tribal judge to move them in with a foster parent they have met twice.

The Trump Administration’s policy of separating children from their parents created such an uproar around the country and the world that the Administration was forced to back down. Yet, a law that is almost uniformly supported by liberal politicians and activists has for years been ripping children away from the only parents they ever knew. I am referring to the Indian Child Welfare Act (ICWA).

Congress passed ICWA in 1978 to alleviate a national crisis, the wholesale separation of Indian children from their families. But in attempting to right a wrong, Congress created a new threat to the safety and well-being of Indian children. It established a weaker set of protections for Native American children than for other American children and subordinated their best interest to that of the tribe.

The problem with ICWA begins with how it defines an “Indian child.” Any child who is either a member of an Indian tribe or is eligible for membership in a tribe, and is the biological child of a tribe member, is considered an Indian child. While some tribes require a certain percentage of Indian ancestry, others (like the nation’s largest tribe, the Cherokees) will accept those with any amount of Indian blood.

There is no requirement that the child or parent has any connections to the tribe or its culture. That’s how tribes end up deciding the fate of children whose Native American ancestry is less than two percent and those who have no social or cultural connection to a tribe. Veronica and Haley Spears, for example, are less than half native, did not grow up in the native culture and only became members of the tribe until their mother enrolled them after they were removed from her care.

ICWA gives Indian tribal courts jurisdiction over child custody cases involving Indian children living on a reservation. For other Indian children, the state court is required to transfer the case to the tribal court if either parent, or the child’s Indian custodian, requests it. If the case remains in the state court, the tribe also has the right to intervene at any time in the proceedings, and can request transfer to tribal court.

That’s what happened to Lauryn Whiteshield and her sister. The Spirit Lake Sioux Tribe invoked their powers under ICWA to remove them from a non-Indian foster family and place them with their grandfather and his wife, despite her long history of child neglect. On November 26, 2013, a the grandfather’s wife was sentenced to 30 years in prison for throwing Lauryn down an embankment and killing her.

ICWA requires a higher standard of proof to remove an Indian child or terminate the rights of an Indian parent. An agency requesting that an Indian child be placed in foster care or adoption must prove that “active efforts” were made to prevent the breakup of the family. This standard is more difficult to meet than the “reasonable efforts” required for all children under Title IV-E of the Social Security Act. This makes it more likely that Indian children will be left in dangerous homes.

If the court orders a foster care or adoption placement, ICWA establishes an order of preferences, with a member of the child’s extended family being the first choice for both foster care and adoption. For an adoption, the second choice if a member of the extended family is unavailable is other members of the child’s tribe and the third choice is other family members. This makes it easy for tribes to take children away from  foster families like the Spears that may have raised them from infancy and want to adopt them.

ICWA is often used to override the preferences of one or both parents about who will raise their child. In 1985, twin babies were born to Choctaw parents living on a Mississippi reservation. The parents drove 200 miles to give birth, hoping to escape tribal court jurisdiction, and chose a non-Indian adoptive family. The tribe brought the case to the Supreme Court, which upheld the jurisdiction of the tribal court. Ultimately, the tribe returned the babies to the adoptive family chosen by the parents. But the tribe’s right to overrule parents on custody for their children continues in effect.

ICWA has no respect for the importance of bonding between child and caregiver and the trauma imposed by separating children from their parents. In the Spears case, the appellate court that sent the case to tribal court ruled that neither the best interests of the children nor the time the children have been with their current caregivers is relevant to the decision to transfer a case to tribal court.

Guidelines issued by the Bureau of Indian Affairs under the Obama Administration dispelled any doubt about whether the child’s best interests should play a role in Indian child welfare proceedings. They state that courts should not “conduct an independent analysis of the best interests of the child” in making decisions about foster care or adoptive placements, because placement in an Indian home is presumed to be in an Indian child’s best interests.

In my last post I wrote about the disparity between black and white placement rates in foster care. People who consider themselves advocates for black children in Minnesota are proposing legislation that would require “active efforts” to keep black children with their parents and reunify them, over and above what must be done for other children. This term is clearly drawn from ICWA, and like ICWA, the Minnesota legislation subordinates the interests of children to their “tribe” or race.

The Goldwater Institute in 2015 filed a class-action suit in Arizona (A.D. vs. Washburn) that “challenges the constitutionality of ICWA requirements that make the best interests of an Indian child less important than the desires of an Indian tribe when deciding foster care or adoption placements.” Unfortunately, a federal judge dismissed the case in 2017 for lack of standing, without ruling on the constitutionality of ICWA. A three-judge panel is now considering the Goldwater Institute’s appeal of that ruling.

The tragic results of ICWA show what happens when we treat people as part of racial groups rather than individuals. Instead of protecting Indian children, ICWA subordinates their interests to that of the tribe and deprives them of the same protections that are given to their peers who do not have Indian blood.