History, Not Race, Says Indian Children Still Need Legal Protection

Earlier this year, policy changes leading to migrant family separations rocked the country, leading to surprise and outrage. How could the United States, founded as a pillar of freedom, even consider a policy that rips children from their families?

However, Native history reminds us that family separation is not new to American soil, nor is our government a stranger to it.

In 1978, the Indian Child Welfare Act (ICWA) was passed by Congress in order to formally end the policy of removing Native children from their families. Until that point, the U.S. government promoted family separations first through boarding schools and later through adoptions and the foster care system.

Mariah Gladstone, 2017 Champion for Change. Photo: Mariah Gladstone

Throughout the 1800s, the U.S. was partitioned among competing Christian denominations for the twin purposes of Christianizing and civilizing the “savage,” “unsaved” Indian population. As boarding schools phased out and public schools began to accept Native students, the methods of assimilation shifted.

Under the guise of “social work,” children were taken from intact biological families and placed with unrelated families, often hundreds of miles from their communities. In some cases, the Bureau of Indian Affairs paid states to remove Indian children and to place them with non-Indian families and religious organizations.

Prior to the passage of the ICWA, approximately 75-80 percent of Indian families living on reservations lost at least one child to the foster care system. Child welfare agencies were often ignorant, indifferent of, or insensitive to cultural differences in child rearing and parenting practices and, as a result, many unnecessary, and unwarranted, foster and adoptive placements were made.

Calvin Isaac, a Choctaw tribal chief testifying to the Senate regarding the necessity of this law, said:

“One of the most serious failings of the present system is that Indian children are removed from the custody of their natural parents by non-tribal governmental authorities who have no basis for intelligently evaluating the cultural and social premises underlying Indian home life and child-rearing. Many of the individuals who decide the fate of our children are, at best, ignorant of our cultural values and, at worst, have contempt for the Indian way and convinced that removal, usually to a non-Indian household or institution, can only benefit an Indian child.”

Until the enactment of ICWA 40 years ago, as many as 25 to 35 percent of all Indian children were being forcibly removed, mostly from intact American Indian families, and placed in non-Indian homes, with a deliberate absence of American Indian cultures. Now, federal law creates specific guidelines for placing a Native American child in foster care.

Under ICWA, a child defined by their connection to a federally recognized tribe is subject to certain placement preferences meant to ensure they are not torn from their culture. The first step in any case is to determine if a child who has been removed from their home meets this definition. A biological parent may have deep cultural connections or only have a rumor of a Native ancestor.

In an involuntary proceeding, the party seeking the placement of the child, which is often but not always the state, must notify both the parent/custodian and the child’s tribe at least 10 days prior to the proceeding. This process helps the social worker determine if ICWA is applicable and that the child may be placed with an approved extended family member or foster home. However, it is clear that the law is not well understood and there are likely many children that slip through the cracks.

During my time working in the Governor’s Office of Indian Affairs in Montana, I received countless phone calls, emails and certified mail deliveries intended for tribal government departments tasked with handling ICWA cases. As a state employee, my capacity was limited to forwarding these to the appropriate party and contacting the sender to inform them of their error in sending them to us.

I frequently saw social workers and lawyers send personally identifying information of minors to an uninvolved stranger, thinking they were doing their due diligence. Instead, their gross negligence potentially set up future legal battles.

Since tribes must be notified when a Native child is taken into foster care, these blunders have real consequences for the children involved. Without proper notification, a case may be dismissed for lack of due process as failure to give proper notice of a dependency proceeding to a tribe excludes the participation by the tribe.

I am saddened to think about the Native children, taken into custody and sent to live far away from their cultures, simply because a social worker never received proper education on ICWA practices. It is more saddening to think of the additional turmoil that it causes in a child’s life if they are then tossed into unnecessary conflicts because the law is misunderstood. One only needs to look to the controversial case of Baby Veronica and the culminating 2013 Supreme Court ruling to see the damage resulting from the poor execution of ICWA.

Correcting these errors moving forward will require in-depth education for state agencies, as well as acknowledgment of the importance of ICWA from both sides of the political aisle. As challenges to the law arise, such as the currently unfolding Brackeen V. Zinke, it is important that the judiciary system understands the history behind these protections. In that case, the judge struck down almost all of ICWA and its new 2016 regulations on multiple grounds, including under the equal protection clause (on the basis that the placement preferences and certain other provisions in ICWA are unconstitutionally race-based in nature).

Martie Simmons, writer and Ho-Chunk citizen, expressed dismay at this ruling. “It is shocking that a judge would ignore the precedent set in Morton v. Mancari that confirmed federally recognized tribes as a political status, not race-based. But even setting the law aside, Native children still need protection,” Simmons said.

With any understanding of federal Indian law, this ruling will likely be overturned, provided that appellate judges recognize the difference in race-based identity and political identity. It is my sincere hope that non-Natives and government entities strive to educate themselves on their obligations while Native people recognize their rights. As we heal Native families and look toward the future, ICWA will remain a central pillar of protecting our children and our cultures.

Mariah Gladstone (Blackfeet, Cherokee) is a 2017 Champion for Change through the Center for Native American Youth and is the founder of Indigikitchen.

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