#2: Getting proactive to protect the Indian Child Welfare Act
The Imprint is highlighting each of the policy recommendations made this summer by the participants of the Foster Youth Internship Program, a group of 11 former foster youths who have completed congressional internships.
The program is overseen each summer by the Congressional Coalition on Adoption Institute. Each of the participants crafted a policy recommendation during their time in Washington, D.C.
Today we highlight the recommendation of Autumn Adams, a graduate of Central Washington University.
In an attempt to head off the weakening or eliminate the “active efforts” requirement of the Indian Child Welfare Act (ICWA) by the courts, Congress should amend Title IV-E — the entitlement that provides most of the federal funding for child welfare systems — to include language specifically designed to keep that provision intact.
ICWA was passed in the 1970s, at a time when up to a third of Indian children were being torn from their families. Disproportionate involvement of Native American children in foster care is still an issue today: Adams cites data showing that “Indian families are two times more likely to be investigated by child welfare and to have allegations of abuse substantiated,” and that “Indian children are four times more likely to be placed in foster care compared to white children.”
This, she argues, means Congress has a vested interest in maintaining the requirements of ICWA through other paths if the Supreme Court ultimately decides to strike down any of its key provisions.
In Their Own Words
“I was able to use the resiliency embedded in my tribal culture and family connections and the precedent set by ICWA to argue and win the custody of my younger brother and sister when I was 19. Without a doubt, my siblings and I would not be together today without ICWA.”
The Imprint’s Take
The entire point of the Indian Child Welfare Act is to protect the unique sovereign rights of tribal families, a step made necessary by the horrific policies of the Indian boarding school era. One of its key provisions is that child welfare systems make “active efforts” to keep Indian families together and, if foster care is necessary, that the same level of effort is made to reunify. This is a step above the federal requirement of “reasonable efforts” for all other children.
Adams’ suggestion here is that Congress not wait around to find out if the most recent court challenge to ICWA is the one that brings down some of its most significant protections. Instead, they should write “active efforts” for Indian children into the federal funding mechanisms as a way to render moot the repeal of that provision in ICWA.
We are far from legal experts, and thus have no idea if that move wouldn’t ultimately end up with its own legal challenge. Adams’ analysis is that this would nullify the federal circuit court’s assessment that “active efforts” was illegally commandeering state resources.
There is another option, we suppose: Congress could just up the standard to “active efforts” for every child. This would also render ICWA’s protection moot, because all families would fall under the same elevated expectations to prevent family separation.