Abstract 

Excerpted From: Amelia Tidwell, The Heart of the Matter: ICWA and the Future of Native American Child Welfare, 43 Journal of the National Association of Administrative Law Judiciary 126 (Spring, 2023) (364 Footnotes) (Full Document)

National attention frequently shifts toward Native American affairs when threats to tribal lands arise, such as when the widespread concerns surrounding the Dakota Access Pipeline rallied support across the country. For the past few years, however, increasingly more attention has gone toward child welfare practices when a Native American child is involved, and for the first time in about a decade, the issue reached the Supreme Court in November 2022 in Haaland v. Brackeen.

The case challenges the constitutionality of the Indian Child Welfare Act (ICWA), a 1978 federal statute that sought to halt the long and tragic history of child welfare services removing Native American children from their homes at shocking rates. More than twenty states, nearly two hundred federally-recognized tribes, and a large number of child welfare and political organizations have weighed in on the matter with amicus curiae briefs, and advocates for both sides eagerly await the outcome now that the Supreme Court has heard the case. The challenge against ICWA goes beyond the mere constitutionality of the Act, however, and brings up questions about whether the Act truly makes positive progress toward its aims and what has caused shortfalls and failures in accomplishing its goals. Regardless of the latest constitutional challenge's outcome, the case has alerted tribes and lawmakers to the systemic failings since ICWA's passage and highlights the need for states to step in and improve upon the Act, ensure that officials apply Native American child welfare laws consistently and accurately, and focus more attention on the unfortunate realities that lead to child welfare involvement to begin with.

This article begins in Section II by delving into the history of ICWA and child welfare practices in the United States and analyzing some of the cultural distinctions between traditional Native American and white American child-rearing practices to provide a foundational understanding of the need for ICWA and potential biases that still creep into caseworker decision-making processes today. Section III looks at the Act itself, its benefits and shortfalls, and legal challenges to ICWA. The article's attention shifts to states' relationships with ICWA in Section IV, using Washington, Minnesota, and the state Respondents in the recent Supreme Court challenge (Texas, Louisiana, and Indiana) as case studies of the way that states have applied, failed to apply, or resisted ICWA. Finally, Section V assesses ICWA's fate upon reaching the Supreme Court and identifies steps that Congress, states, and tribes must take to make further progress in ameliorating the persistent disparities in child welfare for Native Americans, regardless of how the Court rules in Haaland v. Brackeen.

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Tribes have noted “that there is no resource more vital to the [tribes'] continued existence and integrity ... than its children,” who “are the future of their tribes and vital to their very existence.” States and tribes have recognized that “[t]he long-term survival of the Tribe involves an interest in child welfare and child protection proceedings concerning the Tribe's children,” and thus tribes should have prominent roles in such proceedings. While child welfare proceedings are overall meant to prioritize the child's best interests, “[t]he best interests of Indian children are inherently tied to the concept of belonging,” so preserving cultural connections--especially when removal from the home is necessary--is paramount when handling the proceedings.

Concerns about ICWA as it stands are not unfounded. The non-Native American families who have had their adoption plans dashed by placement preference requirements are understandably upset that they cannot be the ones to provide that child with a loving home. Further, while tribes are likely the best entity to ensure that cultural nuances are accounted for in child welfare proceedings and cultural connections are maintained, lack of funding prevents many tribes from creating tribal courts that can fully take charge of the process. The recent constitutional challenge raised the opportunity to reassess ICWA, and systemic failings are also evident across the states. Additionally, while imperfect in its substance and application, ICWA addressed the mistakes that led to Native American children losing their cultural ties through foster care and the adoption process, but it does not seek to solve the unfortunate circumstances that often lead caseworkers to investigate Native American homes to begin with. Though improvements have resulted since the Act's passage, the Act may require updating to address the issues that have prevented ICWA from fully achieving its goals.

Regardless of whether ICWA is upheld by the Supreme Court, states must do a better job of identifying the unique situations and concerns faced by their resident Native American communities and pass legislation, draft tribal-state agreements, and fund community programs accordingly. This is not to say that broader federal legislation is unnecessary; when the system allows room for broad interpretation by too many entities, consistency breaks down and disparities persist, and congressional funding requirements need revisiting. However, changes must occur beyond the reach of ICWA.

Child welfare officials and offices must make necessary changes to breed more cultural awareness at every stage of the investigatory and legal process, in part by giving non-Native American employees cultural training, encouraging more Native Americans to work in the social services and legal realms, and coordinating with tribes regularly to ensure cooperation, understanding, and the meeting of tribal needs in the child welfare process. At the same time, however, the unfortunate realities that trigger the investigatory process, such as poverty, substance abuse, and others, must be addressed at the state and local levels so that the need for intervention will continue to decline. Ultimately, improvements will only come about if states decide to make it a priority, focusing their attention and resources toward helping Native American communities rather than waging legal attacks on a federal law that sought to halt the disparities perpetrated by the state child welfare systems. Once the continuance of ICWA is secured by the Supreme Court (or especially if it is not), states must do the work to ensure their own compliance with the law, fill in missing gaps, and creating lasting, cooperative relationships with resident tribes to find the solutions their communities need to drastically lower the need for ICWA to ever be invoked.

 I have chosen to use the term “Native American” in this article but recognize and respect that the term is not universally used. Rather than alternating with other terms with which many in the community identify--such as AmericanIndian, Indigenous peoples, Indian, and others--with the exceptions of quotes and titles, this article will use “Native American” throughout for the sake of consistency and clarity.