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Top Comments: Upholding ICWA [1]
['This Content Is Not Subject To Review Daily Kos Staff Prior To Publication.']
Date: 2023-06-21
Last week, the Indian Child Welfare Act, a 1978 federal law governing foster care and adoption for Native children, was upheld by the Supreme Court after a federal court called parts of it unconstitutional in a Texas adoption case. Here’s what that means for someone working in the foster care system.
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The US has a long and ugly history of taking Native children from their parents and giving them to white families or institutions to assimilate them. Often this meant a closed adoption, so that the child lost any connection with their culture, or even knowledge that they were Native.
The Indian Child Welfare Act (ICWA) was put in place to protect both the children and the tribes. Under ICWA, if a child in a protective services case is enrolled or enrollable in a tribe, the tribe has the option to take over the case entirely and move it to tribal court. If they choose not to do so, the CPS agency is required to comply with other portions of the law:
Due diligence. CPS workers are required to ask every parent, and other relatives if available, if they have Indigenous ancestry. If the answer is yes (or, as often happens, “I dunno, I think maybe there was a Cherokee great-grandmother or something? Maybe Blackfeet?”), the worker must get as much information as they can on the possible Indigenous ancestors: names, tribes, dates & places of birth & death. This is sent to the relevant tribes to determine if the child is enrollable.
Two things I quickly learned: the fact that somebody “looks” White/Black/Hispanic means nothing; the only way you know if someone is Native is to ask. And a LOT of families have the “Cherokee great-grandmother” family legend, which doesn’t necessarily mean there’s any documented Indigenous ancestry. Why is the family legend so often Cherokee? I have no idea, but when people name a lesser-known tribe, it’s much more likely to be verifiable.
Expert testimony. The agency must provide testimony from an ICWA expert that their actions are appropriate at the time of removal, and again if the case reaches the point of terminating the parents’ rights for adoption. (As a separate issue from ICWA, some tribes now use tribal customary adoption, which allows for adoption without terminating all parental rights.)
Placement. The law also provides a hierarchy of preferred placements: first choice is a relative (Native or not), second choice is a member of the same tribe, third choice is a home from another tribe, last choice is a non-Native family. Occasionally the tribe will make exceptions: I’ve seen situations where the parent asked to have the child placed with a non-Native family friend, and the tribe agreed, figuring this was the best way to support the parent’s reunification efforts.
Inevitably, there are some heartbreaking situations, such as when Native ancestry is discovered belatedly, or when a relative comes forward after a foster family has already formed a relationship with the child. Brackeen v. Haaland, the case that came before the court, involved a non-Native family that adopted a Native boy, but later was not allowed to adopt his half-sister, who was registered with a different tribe, and who was then placed in a tribal home.
The court’s decision concluded that the tribe had the right to decide what was best for the child. While the dissenters tried to paint it as a narrow issue of “racial preference,” the 7-2 majority saw it as an issue of tribal sovereignty.
Every child in the foster care system has already been through multiple tragedies. Being cut off from their tribe and their culture shouldn’t be one of them.
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