The United States’ sovereign tribal nations are no different. Unfortunately, Judge Reed O’Connor of the Northern District of Texas upset this principle and limited tribal nations’ abilities to protect Native American children when he declared the Indian Child Welfare Act unconstitutional last year. This dangerous verdict cannot stand.
For 40 years, the act has protected the best interests of Native children and helped preserve the integrity of tribal nations across the United States. The law was enacted in 1978 in response to the widespread historical practices of removing Native children, often by force or under duress, from their families and placing them with foster or adoptive parents who did not share their heritage — and in the process, detaching them from their Nation, culture, heritage and the communities that cherish them. A report released that year by Rep. Morris Udall (D-Ariz.), who championed the bill, described the number of families subject to this process as “alarmingly high.”
Having survived genocide, catastrophic plagues and systematic oppression on a continental scale, tribes have withstood the test of time by painstakingly rebuilding their identities and healing their communities one child, one family at a time. The multigenerational trauma already caused by centuries of family disruption and dismemberment has only compounded the importance to tribal nations of ensuring their little ones are given every opportunity to retain their identity and home among their people.
The Indian Child Welfare Act aimed to aid in this process by setting high standards that caseworkers must meet when they explore whether a child who is either a member of a tribe or eligible for tribal membership ought to be removed from his or her parents. Those rules include a requirement that families receive support that could help them retain custody of their children; a preference for foster or adoptive placements with members of the child’s family, tribe or other Native Americans; and efforts to include not just children’s parents but also tribal officials in these processes.
For Native children, the ICWA has protected their right to know and understand their own culture. For many, it has allowed ongoing connection to extended families and tribal communities, allowing important cultural traditions to be passed down and tribal nations to build brighter futures.
Research shows that there are important long-term benefits to being raised with a distinct cultural identity as a Native person. For youth, this secure sense of cultural identity is linked to higher self-esteem, better education attainment, and lower rates of mental health problems and substance abuse.
But recently, critics of the ICWA have attempted to attack the legislation by distorting its meaning. The act is based on citizenship. Several state attorneys general, led by Ken Paxton of Texas, convinced O’Connor to strike down the ICWA by arguing inaccurately that the law is based on race and is thus unconstitutional.
Though this latest assault on the ICWA is not the first, it is based on the same fundamentally flawed argument that ignores the sovereignty of tribal nations and the benefits to Native children of growing up with access to their traditions.
These arguments are also historically ignorant, both of the harm that has been done by breaking up Native families and of the successes the ICWA has achieved. The law has created a vehicle for states and tribal nations to work together to create the best environment possible for Native children and families. Those efforts focus on placing children in the best possible homes, factoring their health, welfare and culture into the decision.
In a 2013 court filing, a group of child-welfare organizations said the ICWA was “the gold standard for child welfare policies and practices that should be afforded to all children, and that it would work serious harm to child welfare programs nationwide for this Court to curtail the Act’s protections and standards.”
No citizen of any sovereign nation deserves any less. Four tribal nations, including the Quinault Indian Nation in Washington state, as well as attorneys general from Washington and several other states have come together to file “friend of the court” briefs in the case defending the law to guarantee that they get it.