ICWA Ruling Worsens an Already Biased System

A recent decision regarding the Indian Child Welfare Act (ICWA) sets the stage for the next battle to defend this critical law that protects the rights of American Indian and Alaska Native people. On October 4, the U.S. District Court for the Northern District of Texas handed down an unprecedented ruling declaring ICWA unconstitutional and the act’s accompanying 2016 regulations as unlawful.

Brackeen (Texas) v. Zinke is the case brought by Texas, Indiana, Louisiana and individual plaintiffs with intervening tribes and the federal government as defendants. It is the first time in ICWA’s history that a state has sued the federal government over the act’s constitutionality.

This decision throws out hundreds of years of legal precedents and calls into question the very foundation of federal Indian law. It also threatens ICWA’s vital protections for the most vulnerable Native children and families.

Indian Country and our allies are standing together to defend ICWA. The National Indian Child Welfare Association (NICWA), the National Congress of American Indians, the Native American Rights Fund, the Association on American Indian Affairs, and 28 tribal governments and Native organizations issued a statement vehemently rejecting the ruling, an opinion that would take us back to a time when it was common practice to remove epidemic numbers of Native children from their families with almost no accountability.

The U.S. child welfare system is biased against Native families. Our children are overrepresented in the foster care system at a rate 2.1 times greater than their proportion of the population. National research shows that Native children are removed from their families and placed in foster care at a rate four times more often than their White counterparts, even when both families have the same presenting problems. In addition, research shows that families of color also receive less access to family support services that could reduce the need for removals in many cases.

The research is clear that there are important long-term benefits to being raised with a distinct cultural identity as American Indian or Alaska Native. Identification with a particular cultural background and a secure sense of cultural identity is associated with higher self-esteem and higher educational attainment, and is a protective factor against mental health problems, substance abuse, and other issues for adolescents and adults.

In 2013, 18 leading national child welfare organizations declared ICWA the “gold standard” in federal child welfare policy and practice. In fact, we’ve seen a shift in overall federal child welfare policy toward ICWA’s provisions in the last decade, with more focus on family involvement, placing children with relatives, and offering prevention services to strengthen families and avoid removals whenever possible.

Increasing numbers of states and tribes are working closely together to implement ICWA, especially since ICWA’s regulations went into effect in 2016. States and tribes have upped their game with new or enhanced intergovernmental agreements, state laws and policies, revised practice manuals, training for child welfare workers and attorneys, court collaborations, and shared program resources and information. In fact, seven states — California, Alaska, Montana, New Mexico, Oregon, Utah and Washington — filed an amicus brief in this case in support of ICWA.

We are distressed by the immediate negative impact this decision will likely have for hundreds, if not thousands, of Native children and families already in state child welfare systems. A decision this dramatic can have a chilling effect on ICWA implementation in the plaintiff states and possibly in other states closely watching this case. Children and families will face greater uncertainty as they seek the protections of the law, but instead find state courts and state child welfare agencies uncertain and unwilling to apply ICWA as they should. We fear the possibility of returning to a pre-ICWA environment where Native children and families are removed in even larger numbers than they are now, with even fewer protections and little recourse for them or their families.

While this ruling is certainly a shock to Indian Country, it is not the end of this case. NICWA and our partners are mobilizing to challenge this egregious decision that ignores hundreds of acts by Congress and decisions by the federal courts that have upheld tribal sovereignty and the rights of Indian people as expressed in laws like ICWA.

This is a clarion call. It is a time to be centered with purpose: for all of us to stand up for this important law that provides necessary protections that Native children and families need today. We can’t afford to go back to the days when Native children were forcibly removed with few consequences, and children were often separated from their families with little hope of ever seeing them again. It’s not an option.

Kastelic is executive director of the National Indian Child Welfare Association (NICWA) — the only national American Indian organization focused specifically on tribal capacity to prevent and respond to child abuse and neglect. Before coming to NICWA, Sarah served the National Congress of American Indians (NCAI), including founding the NCAI Policy Research Center.

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