Dear Friends and Allies,
Racial equity in child welfare was dealt a huge blow last month, when a U.S. District judge ruled the Indian Child Welfare Act (ICWA) was unconstitutional. The ruling states ICWA gives preferential treatment to American Indians based on race, thus violating the equal protection
provision within the Fifth Amendment. To understand why this ruling is so devastating to both Native American communities and those of us seeking to transform the child welfare system, we need to understand why ICWA was necessary in the first place.
In the 18th and 19th centuries, the U.S. government carried out a formal policy of colonization and genocide resulting in numerous Native Americans being killed and many Native American children being forcefully removed from their tribal communities and placed in boarding schools. This “Kill the Indian, to save the man” reform used education as a tool to assimilate Native American people into “mainstream, White American culture.” The impact of these policies was devastating for Native American communities as generations of Native children were cut from their language, culture and community.
While the use of boarding schools began to diminish in the 20th century, with the formation of the formal child welfare system, the practice was perpetuated and Native American children continued to be sep
By the 1960s, child welfare systems across the country were removing a disproportionate number of Native America children from their communities. Research found that 25-35% of all Native children during that time were being removed from their home by child welfare; of these children, 85% were being placed outside of their tribal communities with non-native families, even when there were placements available in their tribal community.
It wasn’t until the late 1970’s with the passage of ICWA, that the federal government finally began to address the historical injustices that had been perpetrated against the Indigenous peoples of this land. The law mandated for the first time that when a Native child had to be removed from their home for abuse or neglect, state and tribal child welfare agencies had to make concerted efforts to keep children connected to their families and tribes. In other words, placement with non-native foster families was now considered a last resort rather than the primary option. By seeking to ensure that Native American children in foster care are placed with family members, a Native family in their tribe or another American Indian family before placing them with a non-Native family, ICWA sought to end the practice of cultural genocide. Judge O’Connor seems to have forgotten all this history and instead ruled ICWA gave preferential treatment to Tribes based on race and thus discriminated against white people. This ruling defies everything we know about what good child welfare practice is for All children and families.
with the passage of ICWA,
that the federal government
finally began to address
the historical injustices that
had been perpetrated against
the Indigenous peoples
of this land...In other words,
placement with non-native
foster families was now
considered a last resort
rather than a primary option.
The National Congress of American Indians, Native American Rights Fund, Association on American Indian Affairs and National Indian Child Welfare Association issued a joint statement regarding the ruling. “This egregious decision ignores the direct federal government-to-government relationship and decades upon decades of precedent that have upheld tribal sovereignty and the rights of Indian children and families. Through 40 years of implementation, ICWA’s goal is to promote family stability and integrity. It continues to be the gold standard in child welfare policy. While this disturbing ruling is a pivotal moment for Indian Country, we vehemently reject any opinion that separates Native children from their families and will continue to fight to uphold ICWA and tribal sovereignty.” The Mockingbird Society stands in solidarity with Tribal Nations across the U.S. in condemning this ruling. We urge the Washington State Legislature and policy makers to continue to uphold the provisions of ICWA, keep Native children in their tribal communities and recognize the sovereignty of tribal nations.