Embracing Resilience: Honoring Indigenous People’s Day and the Indian Child Welfare Act

Indigenous People’s Day honors the communities of people who have lived in America for thousands of years. The short history of America emphasizes a melting pot of cultures, peoples, religions, and languages, where people have found comfort and stability in family and community. What is overlooked in history books is the vast history and diversity of the people who have called this land home long before explorers and settlers set foot on its soil. According to the National Congress of American Indians, “Indigenous people have often been erased from the country’s historical record – [a] survey … found that 87% of state history standards don’t mention Native American history after 1900, while 27 states don’t mention Native Americans in their K-12 curriculum.”[1]  As a nation, recognizing Indigenous people and their struggles is vital to creating a comprehensive picture of American history. For centuries, Indigenous or Native peoples have often been forcefully removed from their land, homes, and territories. Their comfort, stability, and sense of family were disregarded for purposes outside their control.

 In honor of Indigenous People’s Day (celebrated on October 9th this year,) SAFY is highlighting the Indian Child Welfare Act. Generation after generation of Native communities were affected in devasting ways when children, especially, were removed from the familiarity of their families, communities, and tribal reservations and taken to boarding schools and private and public agencies (secular and non-secular). Removals often resulted in being moved to predominately white families or places.

 In response to the high number of Native children being removed from their homes and tribes, in 1978 the US Congress passed the Indian Child Welfare Act (ICWA). The purpose of the Indian Child Welfare Act (ICWA) is to “protect the best interests of Indian children and to promote the stability and security of Indian tribes and families … and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs.” (25 U.S. Code § 1902). The ICWA also gives tribal nations the right to have jurisdiction over and be involved in the child welfare matters of their people.

 According to Partnership with Native Americans, the impetus for legislative action in the 1970s was because “25% - 35% of all Native children were being ‘scooped’ away from their parents without clear issues being presented. 85% of them were being placed mostly with middle class, White families — even when fit and willing Native relatives were available.”[2] Even now, a disparity in the removal of Native children persists. The National Indian Child Welfare Association estimates that “Native families are four times more likely to have their children removed and placed in foster care than their White counterparts.”[3]

 The ICWA supports the idea that custody and adoption of Native children residing within their tribal lands should remain on their tribal reservation and that state courts have no jurisdiction over them for custody or adoption purposes. This includes foster care placements.  For ICWA to apply, a child must: be unmarried, be under age 18, and be either a member of an Indian tribe OR is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe (25 U.S.C. § 1903).

 Like all aspects of child welfare, the goal of the ICWA is to advocate for the child's best interest. The unique needs of Indian children must be supported. To achieve this goal, the ICWA requires active efforts. As best as possible, efforts need to be made to prevent removal, including providing early intervention services and support to address problems that might lead to removal from homes or reservations. If removal becomes necessary, the services and support to families continue until the child can be returned.

 In June of this year, the US Supreme Court upheld the Indian Child Welfare Act in a 7-2 decision. The case, Haaland v. Brackeen, was initiated in Texas in 2018 by a non-Native couple who tried to assert, among other issues, that Native parents were given preferential treatment in placements over non-Native parents, creating an inequality between the two groups. A federal district court held that the ICWA violated the US Constitution, which put the ICWA on the path to being reviewed by the Supreme Court. Ultimately, that Court upheld the ICWA. It was a victory for Native families and children, which preserved the ICWA as the gold standard for child welfare. Federal courts have long established that the federal government has limited ability to shape matters of tribal sovereignty. The ICWA is considered the floor for protections, and states can enact their own state ICWA law to enhance protections for Native children and families based on the specific needs of their jurisdiction.

At SAFY, our mission of preserving families and securing futures aligns with the core of the ICWA. By keeping youth with their families or Tribal Nations, the ICWA prioritizes stability, which can lead to better outcomes. Every youth deserves a safe, stable home life centered around family, culture, and community.

[1] Kaur, Harmeet, “What Indigenous Peoples’ Day means to Native Americans,” CNN.com, 29 September 2023, https://www.cnn.com/2022/10/10/us/indigenous-peoples-day-native-americans-cec/index.html

[2] “History and Culture, ICWA Fact Sheet,” Partnership with Native Americans, 20 September 2023, http://www.nativepartnership.org/site/PageServer?pagename=PWNA_Native_History_ICWA&s_src=GglAdNND23&gclid=EAIaIQobChMIsaOdhaOjgQMVQQGtBh0v1gJgEAAYASAAEgLgfvD_BwE

[3] “About ICWA,” National Indian Child Welfare Association, 20 September 2023, https://www.nicwa.org/about-icwa/