Indian Child Welfare Act: A Historical and Legal Context by Brit Reed

On July 8, 2015, Indian Country Today Media Network reported that Phoenix, Arizona based Goldwater Institute announced filing a lawsuit title A. D. v. Washburn which claims that the Indian Child Welfare Act (ICWA) of 1978 quote, “discriminates against native children.” This lawsuit is being filed on behalf of “all off-reservation Arizona-resident children with Indian ancestry in child custody proceedings and foster, pre-adoptive or prospective adoptive parents of those children.” Given the Coldwater Institute’s particular stance and who they claim they are representing, it would be worth their while to revisit what true allyship really means and review the current and historical reasoning for ICWA.

This lawsuit is not the first attack on ICWA, and it certainly will not be the last. However, with greater understanding of the law, why it came about, and where we are currently at now, we can make moves to strengthen ICWA and further protect our children, families, and communities. It is my hope that this three part series will serve as a resource for both Natives and Non-natives alike. The first part will tell how the U.S. government transitioned from a policy taking our children and assimilating through boarding school to assimilating them through adoption. Part one will also briefly discuss how ICWA came out of one of the fiercest and most successful battles by Native communities to protect Native American children from the predatory grasp of child welfare agencies. The second part will outline titles I, II, III, and IV of ICWA and discuss what it means. The third part of this series will discuss the state of ICWA since the passing of the Act in 1978.

The adopting out of Native American children to non-Native American foster homes and adopted families has long been seen as an assimilation tool much like the boarding schools by native communities, Native American adoptees, and government officials alike. In light of this, the fight to protect Native American children from the predatory grasp of child welfare agencies has been one of the fiercest and most successful battles of the 1970s by Native American communities. Out of this fight, the Indian Child Welfare Act of 1978, widely noted as being one of the most sweeping statutes in federal Indian law was passed. The passage of the ICWA was a major victory for tribal nations; and was a major leap in asserting tribal sovereignty in the US legal system.

In her 2013 article Remembering the “Forgotten Child”: The American Indian Child Welfare Crisis of the 1960s and 1970s, Margaret D. Jacobs discusses how the root of the mass removal of Native American children can be found in the late nineteenth and early 20th century gender ideals held by reformist and policy makers of the time. Typical of the mindset at the time, one white reformer asserted, “no uncivilized people are elevated till the mothers are reached. The civilization begins in the home.” Among policy makers and those in authority positions deep concern was expressed, on their part, in regards to Native American women’s mothering and home-making skills. In order to solve the “Indian problem,” between the 1880s and 1930s, thousands of Native American children were removed from their families and communities and placed in boarding schools throughout the country. Several generations of Native American children being raised in boarding schools without learning how to raise children within their own cultural context, lead to traditional Native American family life being successfully disrupted; and the removal of children and continuing the undermining of customary socialization of Native American children being normalized.

In the post-World War II era, Native American family life continued to be seen as a barrier to solving the Indian problem by policy makers. From a public administration point of view, some agencies were beginning to become concerned about the costs of boarding schools. Jacobs states, ”In Minnesota, the Department of Public Welfare calculated that the cost of supporting a child in the Pipestone Boarding School was about $750 per year per child, whereas the cost of supporting an Indian child in foster care was just $468.63 for 1956. Thus, the [Bureau of Indian Affairs] BIA began to recognize that it was cheaper to transfer the cost of maintaining [Native American] children to the states’ child welfare systems. And both the BIA and the states realized that promoting the adoption of Indian children by private families would further save them money. Thus, the BIA and state agencies looked to the ultimate “private” sector – in this case, white families – to take over the expense of raising [Native American] children and hopefully solve the Indian problem once and for all.” During this time, the Indian Adoption Project (IAP) was created as a joint project of the BIA and the Child Welfare League of America (CWLA), an umbrella organization of child welfare and placement agencies nationwide (Jacobs, 2013). Later in 1968, the CWLA incorporated IAP into a new project called the Adoption Resource Exchange of North America (ARENA). Although IAP originally focused its efforts into placing Native American children from the western and Great Lakes states primarily in non-Native American homes located in the northeast, they later switched their focus to in-state adoptions. From 1958 to 1967, Arnold Lyslo, a former BIA employee, headed the IAP. While he was the head of the IAP, Lyslo would often travel across the United States to support such efforts and boasted that in-state adoptions increased in all states where the IAP was active. From a questionnaire that forty-eight agencies replied to, the IAP learned that in 1961 alone, 585 Native American children had been placed for adoption by these agencies – all before the height of such placements.

To ensure that IAP was to succeed, the IAP had to increase both the supply and demand for Native American children among Non-Native Americans. Lyslo often portrayed the IAP as responding to growing public interest; however, he had in fact carefully cultivated the demand for adoptable Native American children. He did this through the placement of articles concerning the adoption of Native American children in popular magazines, religious publications, and family planning journals; and also produced segments regarding the adoption of Native American children for TV and radio. The IAP often utilized images of unwed Native American mothers, deviant extended families, and hopelessly impoverished and alcoholic parents in order to reinforce stereotypes. Thanks to IAP’s media presence, by the 1950s and early 1960s, the general American public had come to the conclusion that Native American families were incapable of raising their children and suspected that every Native American child was forgotten, unwanted, and neglected unless proven otherwise. The public outlook concerning Native American generated by this media campaign created a climate that increased the removal rate of Native American children from their families.

As larger numbers of Native Americans migrated to urban eras from reservations due to Termination and Relocation policies of the 1950s-1970s, Native American children were swept up into state-run child welfare systems at increasing rates. In her article, Jacobs states, “Officials touted the BIA’s Operation Relocation program, begun in 1952 and extended through the early 1960s, as a means to improve the economic prospects of [Native American] families and to end the dependency of [Native American] people on the federal government. In reality, chronic problems with lack of meaningful education and training, unemployment, and underemployment plagued many relocated [Native American] families in urban areas. Now, however, they lacked the extended family support systems of their home communities and were forced to turn to impersonal social service agencies. Sadly, rather than finding aid in hard times, in many cases [Native American] people encountered social workers who regarded them as inherently unfit to care for their own children and a drain on the public till. Psychologist Joseph Westermeyer, for example, complied a list of cases in Minnesota in which [Native American] families at a time of crisis voluntarily sought help from a state agency for welfare assistance because of insufficient funds for food or shelter. In his study of eight such families, Westermeyer found that the state agencies summarily removed the children in each case and placed them in white foster homes without providing meaningful social services to keep the family together.”

By 1968, the success of IAP depended on the supply of Native American children obtained through the coercion of Native American mothers to give their children up for adoption. In her article, Jacobs relates the testimony that Cheryle DeCoteau, of the Sisseton-Wahpeton tribe in South Dakota gave before the US Senate subcommittee in 1974. Dcteau stated that while she was pregnant with another child, “a male social worker kept coming over to the house… every week… and they kept talking to me and asking if I would give him up for adoption and said that it would be best. They kept coming and coming and finally when I did have him, [the social worker] came to the hospital. After I came home with the baby, [the social worker] came over to the house. He asked me if I would give him up for adoption and I said no.” The social worker continued to make weekly visits to the DeCoteau home, until one day he demanded that DeCoteau come to his office to sign some papers. “When they took me in the office there, the social worker went and called another lady in to watch the baby in the next room until I got done… I was kind of sick then… and I didn’t know what I was signing.” DeCoteau goes on to relate that as soon as she signed the papers the social worker refused to return her then four-month-old son, Bobby. Other testimony given to the US Senate subcommittee consisted of stories of women who had had social workers who had their babies taken from the hospital immediately after having been birthed.

Unsurprisingly, IAP, CWLA, and ARENA were all supporters of strong state jurisdiction over cases concerning the custody of Native American children. In order to advance their aims, IAP lobbied for changes in state law that would allow for the weakening of tribal jurisdiction and ease restrictions on Native American children. Jacobs cites Lylso when he asserted, “tribal courts should be encouraged to request civil [state] courts to handle all civil matters relating to the [Native American] child. When a state court does not have jurisdiction of [Native American] children on a reservation, these children frequently are not relinquished for adoption.” Lylso also recommended establishing, “uniform civil laws in all states where by [Native American] children living on reservations would come under the same jurisdiction as all other children in the state.” In addition to IAP’s efforts to weaken tribal jurisdiction over custody cases, they and CWLA often violated legal procedures when it came to Native American families. Despite the fact that they constantly reiterated that, “No parent or legal guardian may be deprived of his child without due process of law” it was a common practice of the welfare departments to place notices of hearings in the local paper instead of directly serving Native American people directly. Although all parents of other races were able to engage in due process concerning the custody of their children, Native American parents and families were often denied that right.

Despite the fact that the fight for the Indian Child Welfare Act might seem less dramatic than the Alcatraz Island take-over or the Wounded Knee occupation, it remains one of the fierce and most successful battles for Native American self-determination of the 1970s. This fight has historically been ignored because it primarily concerned Native American Women. The fight to protect Native American children from the BIA and welfare agencies began at the kitchen tables and community centers. As the movement to protect Native American children grew, Native American social workers and community activists in both reservation and urban communities joined with tribal leaders and advocacy organizations. In doing so, the fight to protect Native American children from child welfare agencies moved from kitchen tables and community centers to courtrooms and the halls of congress. In his article The Politics of the Indian Child Welfare Act, Lou Matheson discusses that in 1974, Native American parents and adoptees affected by the policies enacted by IAP, CWLA, ARENA, and other welfare agencies testified before the United States Senate subcommittee on the ICWA. Among the facts divulged to the Senate Committee, was that between the years 1969 and 1974, twenty-five to thirty-five percent of all Native American children were separated from their families and placed in non-Native American homes or other institutions. In response to the testimony given, Congress enacted ICWA of 1978, one of the most wide sweeping statutes in the field of Federal Indian law.

In his 1999 article, The state and the American Indian: Who gets the Indian child?, Troy R. Johnson quotes declarations made by Congress upon enacting ICWA, “…it is the policy of this Nation to protect the best interests of Indian Children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture…. Congress through statutes, treaties and the general course of dealing with Indian tribes, has assumed the responsibility for the protection and preservation of Indian tribes, and that there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children; that the United States has a direct interest, as a trustee, in protecting Indian children who are members of or are eligible for membership in an Indian tribe and… that the states have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families…. it is long past time that Indian policies of the Federal government begin to recognize and build upon the capacities and insights of the Indian people. The time has come to break decisively with the past and create the conditions for a new era in which the Indian future is determined by Indian acts and Indian decisions. By enacting procedures for the removal and foster placement of Native American children and defining the roles and responsibilities of authority, Congress aspired to prevent the continuation of abuse of power by state agencies, courts, and various church groups in the disruption of Native American families. Native Americans and Tribal leaders hoped the passing of ICWA would strengthen tribal sovereignty and protect Native American families, communities, and tribes against further splintering of tribal systems.

Brit Reed (Choctaw) is a native adoptee. She received her Bachelors of Art in 2014 through the Evergreen State College Reservation Based Community Determined program. She is currently a member of the 2014-2016 Master in Public Administration with a Concentration in Tribal Governance cohort at the Evergreen State College.