Neoshia Roemer, Assistant Professor University of Idaho Collage of Law
By: Neoshia R. Roemer
From boarding schools to adoptions, family regulation has been at the heart of the legal relationship between the United States government and federally recognized Indian tribes. Removing Indian children from their homes and tribal communities was tied to an assimilation project with the end goal of terminating Indian tribes altogether. In fact, by the mid-1970s, approximately 25–35% of all Indian children had been removed from their homes through either state child welfare proceedings or predatory adoption practices—with 85% of those children being placed outside of their tribal communities. After calls from community advocates and activists, Congress passed the Indian Child Welfare Act of 1978 (“ICWA”), codified at 25 U.S.C. § 1901 et seq.
When Congress enacted ICWA, it was a revolutionary law. After all, Congress had only just enacted the Child Abuse Prevention and Treatment Act of 1974 (“CAPTA”), codified at 42 U.S.C. § 5101 et seq. CAPTA set out the requirements that states had to implement in the field of child abuse and neglect in order to seek federal funding. Just a few years later, Congress set out clearer child welfare goals in ICWA. ICWA had two major goals: (1) to protect the rights of Indian parents to prevent the breakup of the Indian family, and (2) to promote tribal sovereignty by ensuring that Tribes could maintain their membership and have a say in what happens to their children. On this note, Congress passed ICWA as a tool of federal Indian law because of its trust responsibility to Indian Tribes. To put it simply, Indian Tribes pre-date the U.S. and the U.S. Constitution. As such the federal government has a special interest and responsibility in “regulating” Indian tribes. Accordingly, ICWA is predicated on the political, not racial, status that American Indians possess.
Functionally, ICWA works like all other child welfare laws to ensure that parents receive due process in child custody proceedings adverse to one or both parents’ rights. What makes ICWA special is its focus on the best interests of Indian children through the protection of their familial and cultural ties. For example, ICWA provides that prior to terminating a parent’s rights, a court must make a finding that they have provided active efforts to reunify the family with evidence beyond a reasonable doubt that the child faces serious physical or emotional harm. Federal law not pertaining to Indian children only requires reasonable efforts, and the legal standard of proof is lower. Further, ICWA provides placement preferences for Indian children that prioritize their extended family members and other tribal members first, should a child need to be placed in out-of-home care or an adoptive placement. ICWA’s placement preferences are substantially in line with best practices in child welfare because they promote a child remaining with family and maintaining ties to their culture. For Indian children, ICWA is in the child’s best interests, especially considering that tribal involvement increases the likelihood that Indian families and children receive the culturally appropriate services that they may need.
While facing the same challenges as other child welfare laws, ICWA has worked for nearly 45 years to prevent the breakup of Indian families and promote tribal sovereignty. Indian children are still involved in child welfare proceedings at disproportionate rates. However, some of the best outcomes for Indian children and families occur when state agencies and courts properly apply ICWA.
Perhaps it is fitting that amidst ongoing calls from practitioners, scholars, and victims of the family regulation system to repeal the Adoption and Safe Families Act of 1997 and protect families, the United States Supreme Court is currently deliberating on challenges to ICWA’s constitutionality on three grounds in Haaland v. Brackeen: (1) whether Congress exceeded its authority in passing the law, (2) whether Congress commandeered state law to pass ICWA, and (3) whether ICWA violates the Equal Protection Clause of the Fourteenth Amendment as an impermissibly race-based statute. Initially, these claims were brought by a mix of individual and state parties: from those who want to be able to adopt any child on demand to states who do not believe that they should have to implement the federal statute. The Court heard oral arguments in the case on November 9, 2022 and has not yet rendered its ruling.
Brackeen could have devastating effects on Indian families, children, and Tribes should they lose ICWA’s protections. ICWA fights against—or at the very least, disrupts—some of family regulation’s harshest impacts. Particularly, ICWA requires focus on children, families, and their communities as opposed to the needs and wishes of third-party actors. Without ICWA, the likelihood of returning to a world with no protections for Indian families in child welfare proceedings is high. As such, losing ICWA is not only a threat to the rights of Indian families but to the right of Indian tribes to exist as sovereigns.