The Supreme Court’s affirmation of the Indian Child Welfare Act reminds us that Native American kids and families need this federal protection
Sandra (not her real name) grew up as a darker-skinned child in an otherwise white family. Her parents told her she was adopted from a Native American mother who could not care for her. Sandra loved her adopted family, but as she grew older, she felt increasingly disconnected from them. After turning 18, she found her biological mother and learned the hard truth: Her biological mother never wanted to give her up. When Sandra was a baby, her biological mother, a member of a tribe in Minnesota, worked long hours, leaving Sandra in the care of her aunts and uncles. When social workers took her away, Sandra’s mother pleaded to keep her. Reliance on extended family did not mean her mother was unfit, but simply overworked. Once Sandra reconnected with her mother and extended family, she formally enrolled as a member of her tribe, began to connect with her tribal community and started her career as a Native youth counselor.
Before Congress passed the Indian Child Welfare Act (ICWA) in 1978, thousands of Native children grew up like Sandra. ICWA’s federal standards ensured that adoption into non-Native families could no longer be used as a tool for breaking up Native families and communities. But recently, ICWA faced legal and political pushback. In June 2023, after years of challenges to tribal protections, the U.S. Supreme Court upheld ICWA in the landmark Haaland v. Brackeen decision, setting the stage for a future in which tribal sovereignty is protected and Indian families are kept whole.
The Supreme Court’s 7-2 decision has fueled a good deal of discussion regarding ICWA’s purpose and merits, including whether and how it protects Native children. This gives us a golden opportunity to better understand how stories like Sandra’s became so common—and why ICWA is still necessary to prevent them from happening again.
Before ICWA: Forced Assimilation Through Family Separation
Before we look at ICWA, it’s important to understand the conditions that made the creation of the law necessary. At the start of the 20th century, the federal government began forcing Native parents to surrender their children to boarding schools designed to destroy traditional tribal cultures. Military leaders like General Richard Henry Pratt, founder of the infamous Carlisle Indian Industrial School, pursued a policy of tribal family separation to “kill the Indian” to “save the man.” According to a report issued last year by the Federal Indian Boarding School Initiative, more than 400 government-funded assimilationist schools once operated across the United States. Native children sent to these schools were separated from their families, cultures, languages and traditions, and they often suffered profound emotional and physical abuse, leaving Native American communities with deep, multigenerational scars.
As Native Americans spoke out against this boarding school system, these schools began to close in the 1970s. But adoption continued to separate Indian families: Surveys conducted by the Association on American Indian Affairs in 1969 and 1974 demonstrated that more than a quarter of Native children were separated from their families and placed in non-Native foster homes or adoptive homes. At the time that these surveys were conducted, Native children were placed in foster homes or adoptive homes at a per capita rate up to 16 times greater than non-Native children in the same state. In 1969, a survey of 16 states revealed that about 85% of these Native children were adopted by non-Native families.
Welfare agencies at the time were often insensitive to and uneducated about Native values and child-rearing practices, such as Sandra’s mother’s reliance on extended family. These practices were often perceived as child neglect or maltreatment, prompting welfare agencies to get involved and remove Native children from their households and communities. Notably, very few Native children were removed from their families because of physical abuse: Two studies, one of a North Dakota reservation and one of a tribe in the Northwest, reveal that Native children were removed from their families on the grounds of physical abuse in only 1% of cases. The other 99% of cases were argued on the vague grounds of “neglect,” with the aforementioned misunderstood cultural practices often being the only evidence for this.
This forced family separation had real and tragic consequences. A growing body of evidence demonstrates that family separation through both boarding schools and adoption caused an increased risk of suicide, substance abuse and depression for affected individuals and families. The separation of families led to a higher risk of poor physical health, lower educational attainment, cultural disenfranchisement, loss of language and deeply fractured family structures in Indigenous communities. The long history of systematic assimilation and the associated negative impacts caused many tribal governments to press for jurisdiction over their Indigenous youth as a matter of cultural preservation and tribal sovereignty.
ICWA’s Purpose—and Why It’s Still Needed
Following decades of advocacy by tribal governments, Congress passed ICWA in 1978. This act set federal standards to limit the removal of Indigenous children from their homes and guidelines for the placement of the children into foster or adoptive homes. ICWA also requires that tribes be notified of any custody proceedings involving a Native child.
ICWA’s purpose is to preserve tribal cultural integrity by prioritizing a child’s placement with Native relatives, members of the same tribe or members of other tribes, rather than encouraging placement with a non-Native family. These guidelines ensure that Native children can maintain their cultural connections whenever possible and that tribal governments are afforded proper authority in cases involving their citizens.
Decades of research on Native youth reveal that the downstream impacts of ICWA have been enormously beneficial to recovering Native culture. The community support and cultural connections supported by ICWA act as protective factors for children who experience adversity. A study of Native youth in the Upper Midwest found that for Native youth facing adversities, Native community support, maternal warmth and especially enculturation (learning about one’s native culture) promote higher levels of adolescent resilience, academic achievement and emotional development. These behaviors build social interconnectedness, are important for positive development and promote well-being.
Furthermore, Native adults who had been adopted by non-Native parents reveal that being separated from their culture and community led to an increased risk of mental health problems in adulthood. Adoptees like Sandra consistently report that their adoption into a non-Indigenous family caused them to experience a sense of confusion in their identity that was only resolved when they reconnected with their Indigenous culture and identity later in life.
Taken together, these findings exemplify why national child welfare advocacy organizations tend to view ICWA as the “gold standard” of child welfare policy. In fact, many child welfare systems are making efforts to implement principles of ICWA for all child welfare cases, as these principles, such as familial placement and cultural consideration, have been shown to improve outcomes for children.
Many critics of ICWA argue that placing a Native child with a Native family from a different tribe fails to preserve Indigenous culture, as different tribes have different cultural backgrounds. While it is true that Indigenous cultures are incredibly diverse, they do share some basic values and cultural components, including beliefs in tribal interconnectedness, community-based healing and harmony with nature. Additionally, all tribes within the United States share the experiences of oppression, familial separation and discrimination. In these ways, different tribal communities are far more similar to each other than they are to nontribal communities. Thus, foster and adoptive parents from different tribes are able to raise a Native child in a much more similar cultural environment than non-Native parents. This practice also provides Native children with more access to culturally appropriate support systems, such as Native counselors like Sandra.
ICWA has been soundly reaffirmed, and it’s no wonder why: It represents the best of policymaking, with lawmakers coming together across party lines to support Indigenous children, tribal culture and Indigenous families. In addition, ICWA’s confirmation is a powerful commitment to historical reconciliation related to the forced family separation that took place during the boarding school era and a commitment to healing from assimilation once and for all.
