A federal law enacted 43 years ago designed to protect Native American families from separation is now under threat like no time in recent history.
Last month, the Indian Child Welfare Act, widely considered to be the “gold standard” of the field, was found to be constitutional by a federal appeals court. But the justices nevertheless chipped away at key provisions that make the law known as ICWA successful. The lengthy, complicated decision could well be reviewed by the Supreme Court, placing the indigenous communities of the United States at further risk.
To examine the law and its impact, The Imprint reviewed summaries of 40 cases handled last fall by a leading nonprofit law firm in Minnesota, where Native American children are removed from their parents at a rate unseen elsewhere in the country. The review revealed that the federal law has a clear benefit for the children it is designed to protect — and without it, those rights would be greatly diminished.
In the cases examined, the Indian Child Welfare Act made a difference in ways both big and small: A child was removed from an unrelated guardian who’d lied to gain custody, another child was reconnected to her tribal relations. Parents received a phone to stay in touch with their children in foster care, and bus fare to help them make court appointments.
The Minneapolis nonprofit ICWA Law Center, in operation for 28 years, is one of a handful of organizations around the country that focuses predominantly on cases where the federal Indian Child Welfare Act law applies. Working from a building owned by the White Earth tribe, the center takes a holistic approach. In addition to four lawyers who handle cases, the firm has three parent advocates on staff, as well as an elder-in-residence who is a national expert on trauma issues for adoptees. Lawyers work in tribal and state courts in Minnesota and in some tribes beyond state borders, representing members of the Leech Lake Band of Ojibwe, White Earth Band of Ojibwe, Red Lake Nation, Mille Lacs Band and others.
At any given time, the office has 200 open cases, and the federal law is applied from the onset, said Shannon Smith, executive director of the ICWA Law Center. Smith found last month’s ruling in the Fifth U.S. Circuit Court of Appeals that chipped away at ICWA’s impact “concerning,” but said for now, it won’t affect cases outside of Texas, Louisiana and Mississippi.
“ICWA is absolutely still as important today as it was when it was passed,” she said. “One of the most critical pieces in it is the focus on a child’s connection to who they are and the child’s connection to their tribe.”
Congress passed ICWA in 1978 to stop the cultural genocide of Native Americans and to rectify the years of harm the federal government and child welfare agencies had caused by wrenching indigenous children from their families and tribal land and forcing them to attend boarding schools. That historic injustice led to the permanent removal of between 25% and 35% of children from their families, according to surveys done in 1968 and 1974 by the Association on American Indian Affairs.
Among ICWA’s key stipulations are that parents and tribes must be notified and included in children’s legal proceedings. If a child must be removed from their parents due to abuse or neglect, officials need to prioritize a placement with relatives or a Native American family. Child welfare workers must also provide “active efforts” to prevent the family’s breakup and promote reunification. That includes providing parents with drug and alcohol treatment, counseling and domestic violence prevention and recovery courses, as well as practical, basic items they may need such as cribs and gas money. In non-ICWA cases, the standard is “reasonable efforts” which requires that a lower level of services be provided.
The Imprint reviewed the 40 cases that the ICWA Law Center handled during October 2020. To protect the privacy of their clients, the center’s attorneys provided summaries of the cases and answered a limited number of follow-up questions.
The cases involved everything from court check-ins on parents’ progress and children’s permanency plans, to emergency protective custody orders and attempts to terminate parental rights.
In one case, two children had been removed from their parents and were living with someone who was not a relative. Their mother had a history of drug use that had affected her memory. The tribe had initially supported the children’s placement in a non-Native foster family because the mother’s relatives were too elderly to care for the children and a tribal foster family wasn’t available.
“Active efforts” in this case meant child welfare officials helped the mother create a schedule, and they gave her a wall calendar to keep track of important dates. Soon, the mother proved she could remember her appointments, even when the social worker forgot the dates, said MaryJo Wiatrak, her ICWA Law Center attorney.
The law’s special provisions, including active efforts, were described as the “gold standard” for child welfare practices by 18 advocacy groups in a 2013 U.S. Supreme Court case challenging ICWA’s constitutionality. The high-profile case centering on a girl referred to as Baby Veronica, involved a white family attempting to adopt a child whose father was an enrolled member of the Cherokee Nation. The Supreme Court ultimately decided the case was not eligible for ICWA because the law didn’t apply to biological fathers who never had legal or physical custody. As a result, Baby Veronica did not go home to her people, but the justices did not strike down the law in her name.
The most recent challenge to ICWA was Brackeen v. Haaland, decided by the Fifth circuit appeals court. In it, the states of Texas, Louisiana and Indiana — along with the conservative think tank Goldwater Institute — joined the plaintiffs, which included another white family seeking to adopt a Native American child. They challenged federal law, arguing that it discriminates based on race.
On April 6, in a 325-page divided opinion, the court determined ICWA to be constitutional. But a majority of the judges agreed to strike several key provisions, most notably, the requirements that child welfare agencies engage in “active efforts” to prevent family separation before terminating a parents’ rights.
The challenges to ICWA brought in Brackeen were opposed by 486 federally recognized American Indian and Alaska Native tribes and 59 Native American organizations. Additionally, 26 states, 31 child welfare organizations and 77 members of Congress signed a statement of support for those defending ICWA.
“It’s a threat,” Sarah Kastelic, executive director of the Oregon-based National Indian Child Welfare Association said of Brackeen, in an interview before the decision. “Tribes are powerful governments. Taking down ICWA could be the first domino to undermine the sovereign authority of tribes.”
Kastelic said her organization and their partners are still sorting out the lengthy, complicated decision and its implications, but that the “underlying constitutionality of ICWA and the power for Congress to enact legislation like ICWA remains intact.”
Its application is ever-apparent in the cases handled by the ICWA Law Center. In one reviewed by The Imprint, attorney Marlee Torrence became involved after a family court granted third-party custody of a child to a man who was facing child and sexual abuse allegations. He had forged an affidavit from the mother saying she wanted him to have custody, and he claimed to be the child’s grandmother’s ex-boyfriend.
Torrence learned that the family court had not applied the ICWA provisions. The tribe was not notified of the custody hearing and there were no efforts to provide services or support to the child’s mother. With the Law Center’s advocacy, the man was removed as custodian and the tribe found a Native American foster family that they believed could offer the child a safe and loving home.
Torrence said there remains some tension between the mom, who would like to reunify with the child, and the tribe, which is supportive of the foster family. This kind of dispute can and does arise, given the number of parties often involved in child custody cases, but still the tribe and the child’s community remain central.
“That’s why we have ICWA,” Torrence said, to prevent situations where people are “basically stealing children without anyone having accountability or knowledge.”
Services for parents must be provided from the beginning of a case, which director Smith described as the aspect of the law most consistently violated.
“There has been an equation that foster care equates to safety — without the recognition that it is flawed, that there is trauma created by it,” she said.
Andrea Braun, another lawyer with the ICWA Law Center, said active efforts like providing parents with bus fare or phones that would be the norm in Minneapolis, where the firm practices most often, are not always provided across the state. “In smaller counties, I spend a lot of time fighting for them,” she said.
Sheldon Spotted Elk, program director of tribal justice partnerships at the National Council of Juvenile and Family Court Judges, said data show the law works. According to a report last year conducted by the national Center for Courts, a partnership of private and governmental organizations representing attorneys and judges, the application of ICWA at the earliest stages of a child welfare case in state court makes a critical difference.
“When the tribe was present at the first hearing, the average time to return home was 158 days compared to 379 days when the tribe was not present at the first hearing,” he said.
In another case the law center handled that illustrates the importance of tribal involvement, ICWA made it possible for a visitation agreement to be worked out with the tribe and the various parties to ensure the child’s connection to the tribe. Two grandmothers, one who was Native American, were fighting over custody of a child whose mother was incarcerated. “The court process started out super contentious,” said Wiatrak, who handled the case, “but by the time we got to our last hearing, they were fast friends.”
The judge gave the parties time to reach an agreement, and while the court established custody with the Native American family, the child’s other grandmother was satisfied with the visitation she was granted. “It was a healing process,” Wiatrak said.
Despite ICWA’s lofty goals over more than 40 years, Native American children are removed from their families and communities at disproportionate rates unseen in any other racial groups. Federal data from 2015 show that American Indian and Alaskan Native children were overrepresented in foster care at nearly 2.7 times their rate in the general population. This is in part because of institutionalized racism and in part because of haphazard compliance with ICWA.
Advocates argue that ICWA can’t work if it’s not applied.
A recent case in Washington highlighted this issue. In a unanimous decision last September, the Washington State Supreme Court took the state to task for its narrow definition of who is and isn’t an “Indian child” under ICWA. The Court ruled that tribal membership and eligibility vary widely among tribes and that it was the tribe’s exclusive role, and not the state’s, to determine who is a member.
Kastelic said when her Oregon organization trains people on ICWA, they suggest child welfare workers ask about tribal identity in more than one way. “They need to be asking continuously and with different terminology. Are you Indian? A member of a tribe? Native? Where did you grow up? Who is family?”
Spotted Elk said courts can and should consider ICWA from the start of a child welfare case, where there is a possibility that the child may be American Indian.
“ICWA is an anti-racist practice,” he said. “It provides all the tools for courts to get it right.”
Yet adherence to the law varies within states and from state-to-state. Nationwide, no federal data track how often and how well ICWA is applied. There is also no federal oversight of compliance with the law and no sanctions for failing to comply.
In its last months, the Obama administration issued a rule that would have required states to gather ICWA data for the federal government, an effort that would have strengthened its foundation. But last May, the Trump administration replaced that action with one that required far less information to be collected. A coalition of tribes, foster youth and advocacy groups sued the previous administration in August in Northern California over the rescinded rule, and that litigation is still pending.
As ICWA faces growing challenges in the high courts, the standard that the decades-old federal law set for child welfare practices — for families of all races — has been profound, experts interviewed for this article noted.
Minnesota, like several other states, including Washington, has passed a state version of ICWA, which could prevent future U.S. Supreme Court rulings from eroding protections for Native American families in that state.
"In most of our cases, we're representing moms who are struggling with extreme poverty, chemical health and mental health issues or domestic violence," said ICWA Law Center director Smith. "But they are also moms who are resilient and committed. When they have an opportunity to access services and work toward a path of healing and address trauma, they can heal from the trauma and reunite their families."