A Native American couple sitting on the grass with their daughter sitting between them. They are both kissing the child’s forehead.
Image credit: RDNE Stock project on pexels.com

For centuries, Indigenous children in the United States have endured forceful removal from their families and communities. This is not new information. Yet in 2023, Native American children continue to be removed from their families and extended families, their language, culture, and way of life. Such actions also, of course, remove children from their sovereign tribes. 

This is contrary to the intent behind the Indian Child Welfare Act of 1978 (ICWA). ICWA, a federal law, was enacted to protect the best interests of Native American children and to promote the stability and security of Native tribes and families.  

Historically, federal policy actively sought to destroy Native American cultures and force feed assimilation.

That law was upheld in June by the US Supreme Court in a 7–2 decision in the case of Haaland v. Brackeen, which held that Native tribes retain jurisdiction over adoption and non-Native families like the Brackeens (and other petitioners included in the combined cases) must get tribal permission to adopt Native children to do so. 

ICWA, in short, remains the law of the land. But the challenge of preserving Native families persists, despite the legal victory. 

How the Indian Child Welfare Act Came into Effect

To understand the importance of ICWA, a little history is in order. It is impossible to discuss Native child welfare today without considering federal policy toward Native children prior to the law’s passage. Historically, federal policy actively sought to destroy Native American cultures and force feed assimilation. This philosophy, in the infamous words of General Richard Henry Pratt—who founded an “Indian boarding school” in Carlisle, PA—was to “kill the Indian…and save the man.”

By 1926, according to one estimate, 83 percent of all Native youth were attending Indian boarding schools. Then, in 1953, the federal government adopted a policy toward Native nations known as “termination,” which sought to eliminate tribal authorities and sovereignty altogether, until, pressured by social movement organizations like the Association on American Indian Affairs, Congress reversed itself two decades later by passing the Indian Self-Determination and Educational Assistance Act in 1975.

As Justice Neil Gorsuch points out in his concurring opinion in the Haaland v. Brackeen case, as boarding schools began to wind down in the mid-20th century, this was replaced in many places with state and county policies that, on often spurious grounds (allegedly related to parenting failures), “whisked children not only out of their families but out of their communities.” Research from 1969 and 1974 indicated that “approximately 25–35 per cent of all Indian children [were] separated from their families” (Gorsuch 8).

ICWA was passed in 1978, as testimony and witnesses from American Indian families and stakeholders across the nation told of the high number of Native children that were forcibly being removed from their families by public and private agencies and placed in non-Indian homes.

Haaland v. Brackeen

Indian Country knew it had to unite to uphold the sacredness of their children and families by keeping its children connected to culture, language, and the Indigenous way of life. So, when ICWA was challenged, this bold threat not only targeted American Indian children, families, and communities, it was also a violent attack on tribal sovereignty that aimed to fracture the political status and resiliency of tribes. 

And, most directly, the lawsuit targeted Native child welfare. ICWA has been acknowledged by many experts in the field, to be the “gold standard” for all child welfare because it recognized “active efforts to keep children safely in their homes and connected to their families, communities, and culture.” For that very reason, tribes, advocates, and stakeholders united with one voice to counter the legal challenge.

While opponents of ICWA were challenging the statute primarily on Article I and Equal Protection grounds, a common theme that ran through their arguments was that ICWA is somehow harmful to Native children. Yet, as lawyers and judges who have been involved in child welfare cases over decades, we know the opposite to be true: ICWA was enacted to “protect the best interests of Indian children,” and that is exactly what it does.

ICWA reflects the sovereignty of tribes and the special protection owed to Native children. It prohibits the removal of a Native child into state custody or termination of parental rights unless the state court finds that “active efforts have been made…to prevent the breakup of the Indian family.” When Native children require foster care or pre-adoptive or adoptive placements, ICWA’s placement preferences promote the right to family integrity by prioritizing extended family and other tribal members.

From the moment a young person is placed in foster care, everything is at stake: their identity, their culture, their home, school, belongings, community, and relationships with family and friends. In short, their future. ICWA ensures that Native children—who, unlike other youth in the child welfare system, have a protected legal political status because of their tribal affiliation—can stay connected to their families and communities. By affirming the constitutionality of ICWA, the Supreme Court has protected the integrity of Native American families and communities while reaffirming and recognizing tribal sovereignty.

Indian Family Protection Act in New Mexico

In recognition of tribal sovereignty and not knowing the outcome of Haaland, states throughout the country have passed comprehensive state laws that mirror and expand the protections of ICWA. Why must its protections be extended? ICWA still operates in a system where children are too frequently removed from their families rather than placing healing of the entire family at the center. 

As Native scholars Jessica Saniġaq Ullrich and Jerreed Ivanich have detailed, “It is important to recognize how difficult it is to achieve the intent of ICWA when it is embedded in a disconnected system that more readily removes children. Adequate implementation of ICWA requires a shift in current child welfare funding because 3-5 billion dollars are spent on foster care and adoption compared to millions spent on kinship care and prevention.”

An example of what can be achieved is the passage in 2022 in New Mexico of HB 135, the Indian Family Protection Act (IFPA). The drafting of the IFPA was an inclusive process led by tribal members to ensure the law reflected the sovereignty of the 23 nations, pueblos, and tribes in New Mexico and protected the rights of Native American children and their families and respective tribes.

The IFPA incorporates ICWA requirements and includes additional state law protections. For example, the IFPA requires early notification to nations, pueblos, and tribes; early and expanded identification of qualified expert witnesses; no child under three months old placed in a non-preferred placement; ongoing mandatory monitoring of non-preferred placements; mandatory training; and cultural compacts when an Indian child is adopted by a non-Indian or non-member family.

The IFPA, like ICWA, acknowledges the critical importance to the Native American child of establishing membership, developing, or maintaining a political, cultural, social, and spiritual relationship with the child’s tribe and tribal community and with cultural ties to clanship or family. Whether this is a federal or state law, the preservation of these relationships is essential to the wellbeing of the child and keeping the child at the heart of the circle, as our sacred trust.

In addition to the IFPA, in 2020, New Mexico entered into a settlement agreement in what is known as the Kevin S. case. The settlement agreement requires the state to work collaboratively with nations, pueblos, and tribes. The goal is to ensure that the state complies with the letter and intent of ICWA and makes every effort to ensure that all Native children and families receive appropriate support and services. The state entered into a Corrective Action Plan that formalizes its commitments to collaborate with each nation, pueblo, and tribe. 

Multiple studies…as well as overwhelming anecdotal evidence support the conclusion that family and community connections improve outcomes for Native American children.

In 2023, the Kevin S. plaintiffs and the state’s Children, Youth, & Families Department convened a listening circle session with New Mexico nations, pueblos, and tribes facilitated by two of the authors of this article—Chief Justice Emeritus Robert Yazzie (Diné) and Justice Cheryl Demmert Fairbanks (Tlingit/Tsimshian)—to hear directly from each sovereign nation about the services and support needed for ICWA in New Mexico. This was an innovative approach to keep the child at the heart of the circle to improve and strengthen the state-tribal relationship, which is critical to compliance.

Keeping the Child at the Heart of the Circle 

Beyond the imperative of respecting Indigenous sovereignty, multiple studies (as described at length in this Casey Family Services brief), as well as overwhelming anecdotal evidence, support the conclusion that family and community connections improve outcomes for Native American children in the child welfare system. For some Native communities, Peacemaking or Talking Circles is an option used to address and resolve issues, disagreements, or harm between parties.

Peacemaking, keeping the child at the heart of the circle, provides healing and understanding, decreases tension, and develops consensus on the best placement and outcome for a child. For instance, if a Native American child is placed in a non-Native home, it is essential that the child is connected to their family, extended family, and tribal community; that is the Indigenous way. 

We must remain committed to collaboration and focus on keeping our children at home and keeping them at the heart of the circle for future generations.

Through Peacemaking, the child’s family and the non-Native family can break through historical barriers in the best interest of the child. Both families are afraid of losing a child they love. Through the Peacemaking process, all interested parties are heard with respect and understanding. Instead of seeing through the Western prism of one side winning and one side losing, parties can reach a consensus by agreeing to disagree in the spirit of mutual respect. Peacemaking in the child welfare context keeps the child culturally at the heart of the circle.

Sovereignty Begins at Home

In the spirit of ICWA/IFPA and victory in Haaland, we must remain committed to collaboration and focus on keeping our children at home and keeping them at the heart of the circle for future generations:

  1. There must be a thorough assessment of child welfare practices to make effective changes to the current archaic systems. Shifting from a punitive mindset to one of healing and restoration should be a foundational principle in child welfare cases.
  2. Strengthening the government-to-government relationship between the tribes and state is essential or we end up with what the Haaland plaintiffs fought for— resulting in the aggressive forceful removal of Native children from their families and tribal communities.
  3. Intergovernmental agreements between states and tribes will guide the best practices for children and families caught up in the state child dependency system. These agreements should include protocols for transfer jurisdiction to the tribe, as equal protection warrants funding and resources to follow the child as a citizen of their respective state.
  4. Shift from removal and intervention to providing resources for the prevention of the removal of the child from their family. This shift will recognize and build off the family and community strengths and will result in a move toward a healthier community. Advocate for active efforts for all families—Native advocates have led the way and developed “gold standard” practices.
  5. If a child is removed, the initial placement must follow ICWA placement preferences or defer to the tribe’s own placement preferences if one has been effectuated.
  6. Ensure that the child is culturally connected to their tribal community, its core values, language, customs, traditions, and way of life. A comprehensive in-service training curriculum must be developed and implemented by the stakeholders based on the specific cultural foundations of each tribe.
  7. Recognize and value the child’s unique political status as a tribal member/citizen and take steps necessary to zealously protect that membership and descendancy in the best interest of the child.

While tribes have been resilient, there have been continuous challenges to their sovereignty at the expense of their precious children. To protect all children and families, the practices inculcated in ICWA should be woven into the child welfare practices of the country at large. 

In the United States, we have often focused on an individualized notion of rights that leaves out not only Native American communities, but the very notion of community interest. Individuals have rights, but we also have responsibilities and a sacred trust to protect all children. Let us shift to keeping our children at the heart of the circle by reaffirming core values, the sacredness of family, extended family, and healthier communities.

Ho’n a:wan chawe a:deh’ya

(Our children are precious and sacred)

Zuni Pueblo