A landmark federal law protecting Native American children from being placed into non-Native families compelled Erika Salinas, a PhD candidate at USC, to pursue her research into the Indian Child Welfare Act, also known as ICWA.
Salinas, who is Native American, had seen firsthand the impact of the Act growing up when her parents had become ICWA foster parents.
So when the United States Supreme Court took up a case earlier this month that carried the potential to strike the act down, it alarmed her. Separating children from their tribes can cause a loss of connection to their community, she said, and a loss of familial ties.
“There are various studies that show the positive impact of [American Indian and Alaska Native] youth being connected to their culture — some examples being lower rates of depression, substance use, and delinquent behavior,” Salinas said.
The Supreme Court last week heard oral arguments in the Brackeen v. Haaland case, in which plaintiffs argue existing law discriminates on the basis of race and does not consider the children’s needs. They say it harms the Native children and the non-Native families who want to provide a loving, safe environment for the kids.
But legal experts have said overturning the IWCA would remove a “gold standard” in child welfare policy and practice.
The federal law, passed in 1978, is designed to prevent Native children from being taken from their homes and tribal communities and put into foster care. According to Salinas, this act preserves cultural and familial ties among American Indian and Alaska Native youth and families and encourages respect for tribal authority in decisions concerning the placement of Native American children in foster care.
Under the IWCA, if more than one tribe has an interest in adopting a Native American child, a court is called upon to determine which tribe has more significant contact with the children. One of the arguments in the court questions how placing a Native child with a family from another tribe is different from placing them with a non-Native family.
Ryder Jiron, who is the communications and policy coordinator for the Coalition to Stop Violence against Native Women, a survivor-led nonprofit, said that a Native foster parent will have an understanding of the importance of the kids’ culture and where they come from. It will also make it easier for them to visit their community and family who may have not gotten custody but are around and maintain connections with them.
According to him, although wanting to provide the children with the perfect environment is a well-intentioned thought, there is a complexity to Native identity. Thus, the importance of building self-identity within their own tribes is something particular to Indigenous culture.
The decades-long “Kill the Indian, save the man” ideology of the U.S. and Canada took many forms, including enrolling thousands of Native children in off-reservation boarding schools. Across the U.S. there were around 350 government-funded schools practicing assimilation of Native people into American society.
As activists put pressure on the schools, the U.S. government forged another approach to separating kids from their tribal homes, basing their methods on the belief that Indigenous children would be better off raised in white homes. The Indian Adoption Project, a 1958 federal program, created by the Bureau of Indian Affairs and administered by the Child Welfare League of America, promoted the adoption of Native children from 16 western states by white adoptive families in the East, pushing thousands of children into the system.
The idea that Native families are dysfunctional and unable to look after their children has put a disproportionate number of kids in the foster care system. Native families living in poverty as a result of systemic exploitation often lose their children because of the conditions they have no choice but to endure.
Jair Peltier, a PhD candidate studying tribal sovereignty and a cultural ambassador to the Native American Pasifika Student Lounge at USC, said that reservations do have problems, ranging from poverty to drug use, that cause kids from the community to be put into the welfare system.
“But for years and years and years, it was kind of being used as a tool to take Native children from their Native families and being put into white families,” Peltier said. “And it became a form of assimilation for these children being put into foster care. And so, [ICWA] was designed to prevent that.”
Experts studying this case and the Act thus also talk about the racialization of ICWA. The Act is constantly being challenged with the argument that this is a race-based law. However, experts cite that ICWA is based on tribal citizenship and political membership.
“This disconnect negatively affects both the compliance of ICWA as well as the understanding of tribal sovereignty, which has a detrimental impact on the government-to-government relationship that the United States has with tribal nations,” said Salinas.
To Peltier, from The Turtle Mountain Band of Chippewa Indians, who started studying tribal sovereignty, wanting to solve problems of sovereignty and tribal constitutions, the conversation around ICWA is concerning.
According to him, if the Supreme Court agrees to strike it down, then they would be potentially setting the groundwork to eliminate Indigenous sovereignty because it would dismantle all the systems that have been in place.
Jiron mentioned that one of the frustrating parts of the whole conversation is the lack of education.
“But it’s more so an attack on tribal sovereignty, [and] also not taking into account the complexities of Indian child welfare.”
Tribal sovereignty had come into question not long ago when in the summer, the Supreme Court had held that all states have, as a matter of state sovereignty, the power to prosecute non-Indian crimes within Native lands.
“So that’s the main issue because [ICWA] is not a racial thing,” Peltier said. “Native people do not exist by virtue of a racial category. We exist by virtue of our historic and political realities.”
This article has been updated to include background information on the ICWA, on November 28, 2022.