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

On July 8, 2015, Indian Country Today Media Network reported that Phoenix, Arizona based based Goldwater Institute announced filing a lawsuit title A. D. v. Washburn that claims that the Indian Child Welfare Act (ICWA) of 1978 quote, “discriminates against native children.” This lawsuit follows in the footsteps of the many lawsuits that have historically sought to undermine the ICWA.

In part one of this series, Indian Child Welfare Act: A Historical and Legal Context, discussed how the U.S. government transitioned from a policy of taking our children and assimilating through boarding school to a policy of assimilating them through adoption. Part one also briefly discussed 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. Part two outlined titles I, II, III, and IV of ICWA and discuss what it means. This third and final part to this series will continue to discuss what ICWA as a legal document means and the continuing power struggle for sovereignty between tribal nations and states.

Trace DeMeyer, a pre-ICWA adoptee, wrote in her short essay Carry Their Blood, “The Indian Child Welfare Act Was signed into law in 1978, after the Indian adoption projects, which placed children… with non-[Native American] parents to end tribal affiliations. If I was born after the Indian Child Welfare Act of 1978, then the social workers would have been required by federal law to notify my father and the tribe. I would not have been placed with strangers who know nothing about me or my ancestry. My dad Earl told me when we met he would have raised me, or one of his sisters would have, which is kinship adoption and traditional in Indian Country. Even though my mother didn’t choose to raise me, my dad would have raised me.” Lou Matheson states that in 1989, a report was released that stated that since the passage of ICWA, rates in which Native American parents were notified when their children were at risk of removal had increased. Prior to the passage of ICWA the rate was zero percent, but had increased to sixty-five to seventy percent of the time after the passage of the Act. Likewise, as of 1989, tribes were notified eighty percent of the time, and Native American children who were removed from homes were placed in the homes of extended families forty-seven percent of the time.

Nevertheless, according to Troy R. Johnson’s article The State and the American Indian: Who Gets the Child, a study published in 1988 by CSR Incorporated (Washington, DC) and it’s subcontractor, Three Feathers Associates (Norman, Oklahoma) found that, “While some states have supported the intent of the law through the passage of state Indian child welfare legislation and the negotiation of state-tribal agreements, the implementation of the ICWA has been unevenly applied. In fact, 1987 figures reflect an increase in the percentage of [Native American] children placed in substitute care: thirty-five percent of all [Native American] children were placed in substitute care with eighty-five percent of that number being placed in non-[Native American] homes.” In my research, it became apparent that tribal nations understanding of ICWA often lined up with that of the federal government. Tribal Child Welfare website pages, such as those belonging to Choctaw Nation Oklahoma and Cherokee Nation, often cited the frequently asked question (FAQ) page belonging to the National Indian Child Welfare Association (NICWA); who intern often took their answers from the wording within the Act.

It has been firmly established since the time of the Marshall trilogy that the federal government holds the highest sovereignty, followed by tribal sovereignty, and finally state sovereignty; however, states continue to push for more power over tribal sovereignty. Within both ICWA and House Report No. 1386 pp. 17-19, Congress states regarding child custody proceedings the provisions of ICWA supersede State Law. However, Section 111 under Title I of ICWA also states, “The Act sets minimum standards of protection of parents’ rights in child custody proceedings but allows for the use of higher Federal or State standards if any exist.” In other words, the only time state legislation supersedes ICWA is when the states Indian child welfare laws are higher than the minimum standards set by the Act. In spite of this, states have utilized both federal legislation and state made legislation and doctrines to undermine ICWA. Carol Tebben’s article A Family Lawyer’s Guide to the Indian Child Welfare Act discusses that In the case of Public Law 280 and the Adoption and Safe Family Act (ASFA) of 1997, both laws seem to conflict with ICWA on fundamental and jurisdictional levels. However, when both laws are examined closely, it becomes clear that neither overrule ICWA. Thanks in part to ignorance, due to meager training or a complete lack of training concerning ICWA for non-native child welfare agencies and courts, P.L. 280 and ASFA are often enough applied to custody cases where ICWA should have superseded.

More disturbing, and counter-intuitive to the intention of ICWA, is the utilization of the “existing Indian family doctrine” and membership by States. The “existing Indian family doctrine” is utilized to nullify the protections of ICWA in cases that the Act would otherwise apply. Under the doctrine, even if the child is a tribal member or eligible to be so, they must be part of a Native American family with active cultural ties to a tribe in order for ICWA to be applicable; yet, ICWA does not require such an exception in its application. Membership has also been utilized to nullify ICWA protections in custody cases. It is clear that in-depth training among child welfare agencies and courts is needed and to occur frequently. Title I of ICWA outlines the procedures to be followed by agencies to determine whether the child in question is in fact a member of a federally recognized tribe and thus covered under ICWA. However, due to lack of training, in the past when state judges and state welfare personnel found themselves in the position where they did not know if ICWA was applicable because they did not know the particular tribal standards concerning membership. In some of these cases, child welfare personnel assumed the child was not a member for arbitrary reasons such as the child’s last name did not sound Native American or the child did not look, to the particular worker, like a member of a tribal nation. In these cases, state officials are confused about who has the right to speak for the tribe. All the same, tribal nations are the only ones who have the authority to determine who is a tribal member. A common mistake made when determining a Native American child’s status is to inquire if the child is an enrolled member of a tribe. However, it is possible, if a tribe chooses, for a child to be ineligible for enrollment but still be considered a member of that tribal nation. Tebben states, “ICWA mandates are triggered if a child is a “member of an [Native American] tribe” or “is eligible for membership in [a Native American] tribe and is the biological child of a member of [a Native American] tribe.” Since “enrolled” is not included in this language from ICWA, enrollment is not necessary for the Act to apply.” Disregarding procedures to contact tribes to discover if the Native American child in question is in fact considered a tribal member under the tribes’ standards and utilizing the existing Indian family doctrine tactics that states utilize to undermine tribal sovereignty and employ their own standards to decide who is and who is not Native American.

In his article, Culture Talk or Culture War in Federal Indian Law?, Alex Tallchief Skibine quotes Same Deloria when he said, “Let me warn you about something about this culture business. In the law of the United States, which is the way decisions are made and power is allocated, that power can put us out of business. Our existence is on a thread…. In the law of the United States… we are entitled to self-government because we, as societies, preexisted this other government that came along. And that’s fine. That is an abstract, theoretical basis for our tribal existence. And there are no conditions on that. IF we state out a position that says that our right to self-government is tied to our dedication, our adherence to culture… we are saying for the first time, WE are saying, it’s conditional…. [we have to] be damned careful that we’re not saying to this society, ‘In exchange for a continued political existence, we promise to maintain some kind of cultural purity,’ because you think it’s going to be by our standards. Hell no… it’s going to be by THEIR standards.” Skibine, himself, states in the same article, “The danger now is that through legal regulations of such cultural issues, the dominant culture will try to influence and transform Native American culture and religion in order to make them better “fit” into the dominate culture’s vision about what [Native American] culture should be. So the question is whether there can be “integration” without “assimilation.” The challenge here is to achieve protection for Native American culture without Native American culture being “assimilated” into the dominant culture, thereby losing what is uniquely “Native American” about it. “

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. Despite this, both ignorance and willful disregard of the Act by states and child welfare personnel continue to compromise the effectiveness of ICWA and place future generations of Native American children and communities at risk. Further educational training concerning ICWA for child welfare agencies and courts is needed in order to cultivate the strengthening of the Act. Although tribal nations have come a long way in the fight to protect our children and tribal communities, the fight is not yet over.

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.