On Indian Child Welfare Act, Time for Critics and Supporters to Talk in Earnest

Johnston Moore

Two weeks ago, a U.S. District Court in Texas struck down large portions of the Indian Child Welfare Act (ICWA) as unconstitutional. People who believe ICWA treats children unfairly cheered the ruling, while others, who want to preserve the law, criticized it and vowed to fight back.

I count myself among those who celebrate the ruling, though I know this is only one step in the right direction. There is much work to be done, and if the past is any indication, the work will be met with great opposition.

My wife and I first learned of ICWA in 2001 when, after taking in and falling in love with two young boys placed with us through foster care, we had our worlds – and worse, the boys’ worlds – turned upside down by this law. Whereas we had been, according to our social worker, on a fast-track to adoption, we were now considered unfit to raise the boys due to nothing other than their eligibility for membership in a tribe they had never heard of, and their Indian mother was not even certain she belonged to.

One thing that immediately struck me as I began to research ICWA was that the professionals in the system in Los Angeles County, including the social workers in the American Indian Unit, had a very narrow view of ICWA. They seemed to know very little about it, focusing on certain aspects of it and ignoring others. I found myself educating some of the professionals, including social workers, and even attorneys, about the law. Many of my efforts fell on deaf ears, unfortunately, and social workers in particular continued to ignore any part of the law that would have allowed the boys to remain with us.

Another thing that struck me in reading about ICWA and the history behind it was that neither Congress, nor tribal entities, were talking about children like my sons in the years leading up to the passage of the law in 1978. My sons had never lived on a reservation or in Indian Country – they were born and raised three states away from the reservation on which one great-great grandparent had lived, and they had 1/16 Native American blood.

They had no connection to the culture and, in fact, did not even know they were part Native American. These were not the children the law was designed to “protect.”

During the course of our fight against ICWA to adopt our sons and in talking with others over the years, I have concluded several things about ICWA:

  • The law is flawed.
  • The law is outdated.
  • The law is often misapplied, either unintentionally or intentionally.

I have been saying all of this for 17 years now, and I continue to say it today.

In light of the recent ruling, I want to offer a way going forward. Let’s stop the angry rhetoric, of which I am guilty, too. Though I cannot speak for others, I can say that, as a Christian and an adoptive parent and advocate, my goal has nothing to do with eroding tribal sovereignty. I simply believe the best interests of children need to be the most important factor when making foster and adoptive placement decisions for them, and that a 1978 law cannot define what those best interests are for each and every child who is a member of, or is eligible for membership in, a federally recognized tribe.

Let’s convene in a neutral setting and talk about the issues and let’s take those conversations to lawmakers, either at state levels or federal (though it looks like Congress may have overstepped its bounds with ICWA, according to the Texas court). Let’s bring the voices of pro- and anti-ICWA organizations and those who have been impacted by ICWA, both negatively and positively. Let’s bring the voices of child development experts.

We can talk about the importance of children maintaining connections to their culture without automatically assigning the culture of one Native American ancestor, however remotely removed, to those children. We can also recognize that no child, whether purely from one culture or multi-cultural, should ever be limited in placement options to only relatives or parents of one specific cultural background.

Incredible strides have been made in the world of child development since 1978, and yet ICWA has not changed with the times. We live in a different world now. No one was talking about attachment issues in 1978, for instance, and yet now we know so much about the importance of children maintaining bonds, and the damage often done to children when those attachments are broken.

Let’s leave behind the old talking points and let’s start with where we are today. When we talk about disproportionality in foster care, let’s look at all the factors for these figures being what they are – including the fact that many children are not identified as Native American until after they enter the system, which inflates the figures and makes the disproportionality indices look worse.

We can talk about how Native American kids are over-represented in foster care in some states, and under-represented in other states, including states with large Native American populations like Arizona and Oklahoma (based on 2015 figures). Certainly no one would suggest we remove more Native American children in Arizona and Oklahoma in order to even out the numbers, would we?

All in all, when I look at ICWA as written and applied today, I believe it is an unjust law that hurts children. That belief is based on what I saw happen to my sons, as well as to many other children over the years.

There are principles that underlie ICWA, however, that I believe we can all get behind. Certainly, we don’t want social workers to act in a biased manner against any struggling family. We don’t want children removed from families unnecessarily. We don’t want fraud in adoption and foster care. We want workers to make efforts to help preserve and reunify families when possible, as long as it doesn’t jeopardize the safety or well-being of the children, or delay permanency for an unreasonable period of time.

We want workers to place children with relatives early, if the relatives are willing to provide a safe and loving home. We want to place children in homes in their communities, when possible. All of these reflect concerns that led to the passage of ICWA in 1978. I believe solid and ethical social work practices across the board can best address all of these issues, and we don’t have a need for ICWA anymore. Others will certainly disagree, though, and so the fight will likely continue.

We mustn’t forget, though, that children will continue to suffer as long as this tug-of-war continues. We have to end it, and we have to do what is right for children. What that looks like still needs to be determined, but we will never agree if we don’t sit down and talk.

Johnston Moore and his wife Terri have adopted seven children from Los Angeles County foster care. He is an advocate, writer and speaker on issues related to foster care and adoption.

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