By Kathryn E. Fort
On February 28, 2022, the Supreme Court accepted one of the most consequential federal Indian law cases in decades, a direct constitutional challenge to the Indian Child Welfare Act (ICWA). This challenge, brought by three states and three foster families, intends to not just dismantle a gold standard law in child protection, but all of federal Indian law. The plaintiffs who brought this case are not interested in improving the child protection system, or finding ways to support promising practices, or ensuring the resiliency for Native children affected by trauma. This case is about an attempt to dismantle the current federal protections for tribal governments, tribal citizenship, and tribal sovereignty. The case does so by ignoring the best interests of Native children and the voices of a uniquely unified Indian Country.
There are over 500 federally recognized tribes in the United States today. They are all self-governing, pre-constitutional sovereigns. And at the heart of their right to exist is their right to determine who is a tribal citizen and who is not. That determination is a political one, as is the determination by the federal government to recognize a tribe. That political relationship, along with provisions of the Constitution and the trust responsibility, form the base of the structure that has become federal Indian law. The plaintiffs in front of the Court now seek to undo that structure under the guise of knowing what is best for Native children, despite a forty year old law that was drafted in collaboration with tribal leaders deeply concerned with those best interests.
Prior to ICWA’s passage, Congress held multiple hearings and heard hours of testimony. The testimony of the women who worked for years to get a federal law to protect Native children from both public and private agencies relayed the same idea — they know how to take care of themselves and their children. Goldie Denny pointed out that “Indian people have successfully raised many, many happy children . . . for many, many years before we had middle class American standards imposed upon us.” Faye LaPointe stated that “we know that our children are our greatest resource, and without them we have no future . . . we have been here many times before with the same message: ‘we know what is best for our children.’” This message has remained steadfast to this day.
From the federal perspective, the intentional destruction of Native families ended in 1978. Stating that “it is the policy of this Nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families . . .” Congress passed ICWA, ensuring certain federal minimum standards to protect tribal families and tribes themselves. ICWA requires due process protections for Native parents and tribes, including notice of a child protection case. The law tells courts to prefer placement with relatives or fellow tribal citizens when a child goes into the foster care system. The law requires the party placing the child in foster care to prove active efforts to rehabilitate and reunify the Indian family.
However, today Native children remain overrepresented in the child protection system. Oftentimes, relative placement is overlooked by state workers seeking to place children outside the home. Families don’t receive the services they need to reunify. Tribes aren’t properly notified of their children in state systems, or of hearings involving the placement of their children, and their ability to respond with services is delayed. ICWA was passed a generation ago, but states are just now starting the kind of training and providing the kind of services the law requires.
Judges enforcing ICWA (or attendant state laws) are providing for the best interests of Indian children, especially when a child protection case moves toward permanency. ICWA requires a high burden of proof to permanently sever the legal connection between parents and children. ICWA protects minor mothers by ensuring their right to parent is protected. ICWA allows tribal representatives to participate in child protection and adoption proceedings. The law works to keep families together when it is safe for the children, but also ensures children the best placement when a court must terminate parental rights. That’s because ICWA gives preference for placement in an adoption with extended family or tribal citizens. Kinship care is a kind of family preservation and one tribes recognize deeply. They know kinship care is in the best interests of children.
In truth, adoption is deeply traditional for tribes — taking care of tribal children, ensuring their health and safety, their happiness and sense of belonging, and ensuring their best interests are respected — that is what tribes have been doing since time immemorial. Adoption based on a deep cultural understanding of reciprocal love, responsibility, and community is what ICWA protects. Adoption isn’t the sole answer, but when it is the answer, ICWA protects Native children’s best interests by keeping them connected to their family, their culture, and their tribe.
Kathryn E. Fort is the Director of Clinics at Michigan State University College of Law where she runs the Indian Law Clinic. Her clinic, along with Kilpatrick Townsend and Jenner Block, represents the four tribal petitioner/respondents in Brackeen v. Haaland.