Author Bio: Gerry Charvat is a graduate of the EWU MSW program. He is a Senior Lecturer and a Faculty Field Advisor for the EWU Child Welfare Training and Advancement Program (CWTAP). Gerry started his social work career as an Indian Child Welfare (ICW) social worker in Whatcom county, working with the Lummi, Nooksack, and Upper Skagit Tribes and then as a supervisor for an ICW unit in Spokane, WA.
In an 7-2 ruling SCOTUS determined the Indian Child Welfare Act (ICWA) to be constitutional, preserving the self-determination and self-governance of Federally Recognized Tribes across the country. At stake was the protection of the greatest resource for Tribal existence and integrity; their Native American children and families (Indian Child Welfare Act [ICWA], 1978). The challenge to ICWA came from three separate involuntary child custody proceedings where a Tribe opposed adoption and/or had requested the child be moved to a Tribal placement from non-Tribal foster parent. A biological mother, foster parents and the state of Texas filed suit in Federal Court on the grounds that it was an overreach of the federal government to force states to follow ICWA and that ICWA’s preferential placement with Indian families over non-Indian families was discrimination based upon race (Haaland v. Brackeen, 2022).
Before getting into the challenges, it is important to understand how and why ICWA was established. It is well documented that throughout history one of the most effective ways to destroy a civilization is to take its children. After taking their land, the US government sought to annihilate the Native Americans by kidnapping their children from their families, communities, and tribes. The children were taken to boarding schools to be indoctrinated and stripped of their Native American identity. In 1892, the founder of the first government run Native American boarding school, Captain Richard Henry Pratt, stated; “A great general has said that the only good Indian is a dead one, and that high sanction of his destruction has been an enormous factor in promoting Indian massacres… In a sense, I agree with the sentiment, but only in this: that all the Indian there is in the race should be dead. Kill the Indian in him, and save the man,” (Carlisle Indian School Digital Resource Center, 2023).
Generations of Native American children were removed from their families and placed with non-Tribal families resulting in the unravelling of Native American communities across the country. To rectify this and strengthen its government-to-government relationship with Tribes, Congress enacted the Indian Child Welfare Act of 1978 to ensure that; Tribes would be entitled to exclusive or concurrent jurisdiction of any Indian child welfare case involving their child, active efforts would be provided by public child welfare agencies to “keep the Indian family intact,” and Tribal placement preferences would be followed (ICWA, 1978). The Haaland v. Brackeen petitioners challenging ICWA attempted to paint ICWA as an act of racism against non-Indians and excessive government overreach into state custody matters. The petitioners sought public favor by posting op-ed articles and presenting stories of children being torn from foster families simply because they were not Native American. The U.S. Supreme Court, with strong support from various Tribes and states (including Washington), rejected these assertions.
While it is true that ICWA is about culture and ethnicity, it is of even greater importance to acknowledge that ICWA is about Tribal self-determination and sovereignty. As a nation, we value sovereignty. We have invested billions of dollars to assist Ukraine in maintaining their sovereignty. There are 574 federally recognized sovereign Tribes in the United States. These Tribes have the absolute right to determine who their members are and how membership is determined. Tribes have the right to determine the best interest of their children regardless of the opinions and values of other government agencies, service providers, and foster parents. Tribes have their own laws and customs that are designed to keep children with their family and with their Tribe. These laws may have been passed down orally, they may be written, or have similarities to “western laws” but it is up the Tribe to determine their application (Atkinson, 2019). It is a victory that the U.S. Supreme court upheld the special relationship Tribes have with the U.S. government and protected the rights of Indian children and families from the misguided and ethnocentric ideology that non-Indians have a better idea of what is in the best interest of the Indian child.
Further reading resources
Native Governance Center; Sovereignty Under Attack: https://nativegov.org/news/sovereignty-under-attack/#:~:text=ICWA%20upholds%20and%20strengthens%20Tribal,have%20a%20distinct%20political%20identity.
Washington State Department of Children, Youth & Families (DCYF) response to the SCOTUS ruling: https://content.govdelivery.com/bulletins/gd/WADEL-36049f9?wgt_ref=WADEL_WIDGET_277
National Indian Child Welfare Association (NICWA) response to the SCOTUS ruling: https://www.nicwa.org/policy-update/
References
Best Interest of the Child: A Tribal Judge’s Perspective. Atkinson, Judge Lisa L., Judges’ Journal, 00472972, Winter 2019, Vol. 58, Issue 1.
Carlisle Indian School Digital Resource Center, accessed September 24, 2023, https://carlisleindian.dickinson.edu/teach/kill-indian-him-and-save-man-r-h-pratt-education-native-americans#:~:text=This%20resource%20includes%20the%20full,and%20Correction%2C%20held%20in%20Denver.
Haaland v. Brackeen. 599/1. 2023. https://www.supremecourt.gov/opinions/22pdf/21-376_7l48.pdf
Indian Child Welfare Act of 1978. 25 USC 1901 et seq. https://uscode.house.gov/view.xhtml?req=Public+Law+95-608&f=treesort&fq=true&num=1&hl=true&edition=prelim&granuleId=USC-prelim-title25-section1901
Tribal self-determination and sovereignty have often been ignored by those applying child welfare practices to Native children and families. Court actions that affirm Tribal rights protect children from individuals and organizations denying the existence of institutional racism.