The case against India’s Child Welfare Act


The Supreme Court will decide as early as the end of next week whether it will hear the latest constitutional challenge to the Indian Child Welfare Act (ICWA). Under the provisions of the ICWA, which was passed in 1978, tribal governments have a say in where children of Indian blood are placed in the event of a custody dispute. In practice, this means that tribal governments can block that child from being placed in foster care or adoption with a non-Indian family, even if no Indian family is available. Last year, the United States Court of Appeals for the Fifth Circuit affirmedby divided vote, the High Court judgement that ICWA’s preference for foster placement with other Indian families violates the equal protection component of the Fifth Amendment.

Leaving the constitutional question aside for a moment, it is worth asking whether ICWA succeeded on a purely political level: did it, in fact, advance the welfare of Indian children? The answer is a definite no.

Anyone following these cases may wonder why so many Indigenous children end up staying in non-Indigenous foster homes for years, bonding with parents, only for an Indian family to be on the other side of the country, forcing authorities to snatch young children from the only family they have ever known.

It’s not just business that grabs the headlines. Take the Cliffords, a Minnesota couple who welcomed a five-year-old child. More than two years later, the child was taken for adoption by a grandmother who had previously been denied placement. Or the Blacks, a couple from Wyoming who had taken in two half-siblings (one eight-year-old and two-month-old) and cared for one for four years and the other for eight, before the boys were placed with an aunt they did not know.

The reason for these results is actually in the math. Take Minnesota, which has one of the largest indigenous populations in the country. There are approximately 7,800 children in the foster care system, about a quarter of whom are classified as Native, despite the fact that Native people make up only about 2% of Minnesota’s population.

Sixty percent of Indian children placed in foster care are placed there by a tribal agency. There is a widespread misconception that Indian children are taken from Indian families and communities by non-natives who act out of racial prejudice. Indeed, this is one of the reasons ICWA was adopted in the first place – the idea that white social workers looked at Indian children living in poverty and removed them to white families, instead of give them the material support they deserve.

The United States Supreme Court is seen in Washington, DC on February 8, 2022.
MANDEL NGAN/AFP via Getty Images

Whatever the truth was about half a century ago, nowadays it is often the tribesmen who decide when children are at risk and should be removed. But only 12.5% ​​of 3,200 unrelated foster homes available are Aboriginal. In other words, there are approximately 2,000 Indian foster children and 400 native homes to place them.

The result is that Indigenous children are regularly placed with non-Indigenous families, often for years, and bond with those families. But because of ICWA provisions designed to ensure that indigenous children are only adopted by Indian families, it is much more difficult for them to find permanent homes. When Indian families are found, they are often from a different tribe, in a different state – and some of these placements are made over the objection of the children’s immediate and extended family members. The trauma that results from these separations from biological parents is only compounded by the fact that Aboriginal children have formed strong bonds with their foster families.

Indian children are also forced to spend much more time in the foster system than their peers of other races. Under the timelines set out in the Adoption and Safe Families Act of 1997, when children are in foster care for more than 15 of the last 22 months, states are expected to take action to end the rights parental. A bipartisan coalition of lawmakers has ruled that a child spending up to two years in foster care is seriously detrimental to that child’s well-being. Foster care, after all, is meant to be temporary.

But thanks to ICWA, Indigenous children can and do spend much longer in care. In Minnesota, nearly 200 Indigenous children have been in care for more than three years. That’s a higher raw number than children of any other race. Removing these children from loving families with whom they have developed secure attachments after so many years – regardless of the race or ethnicity of the families – is simply cruel. Any child protection policy that produces this kind of trauma is not really child-friendly policy.

Natives residing within the jurisdiction of the Fifth Circuit need no longer worry about the effects of this damaging law, but only the Supreme Court can ensure equal protections for Indian children across the country by striking down the ICWA.

Mark Fiddler is a progressive Democratic activist, member of the Academy of Adoption and Assisted Reproduction Attorneys, and member of the Turtle Mountain Band of Chippewa Indians. Naomi Schaefer Riley is a senior fellow at the American Enterprise Institute and author of No way to treat a child.

The opinions expressed in this article are those of the authors.

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