ICWA Briefing Focuses on Native American Children

This destruction of Tribal culture was fully documented in a report released by the United States Department of the Interior following more than a year-and-a-half of investigating atrocities committed at boarding schools against Tribal people.

The report details the activities of 408 federal Indian board schools across 37 states that operated between 1819 and 1969.[i] The report describes the boarding school environment as fostering “rampant physical, sexual, and emotional abuse; disease; malnourishment; overcrowding; and lack of health care” on children as young as four years old.[ii] The report acknowledges the federal government used money from the Indian Trust Funds to pay the schools, including those managed by religious organizations. These destructive practices resulted in the Tribal children being removed from their homes without parental consent and forced into environments designed to eviscerate generational bonds by destroying language and culture. The Meriam report, conducted in 1928, looked at the condition of Native Americans in the U.S. and found the “main disruption to the Indian family and tribal relations had come from the Federal Indian boarding school system.”[iii]

Placing Tribal children in non-Tribal environments not only exacerbated the existential threat to the language and culture of Tribal nations, but also did irreparable harm to children who were separated from their families, culture, and heritage. Early childhood is a key period of mental and emotional growth that can predict the course of the lives of individuals. The unique cultural influences children respond to from birth, including customs around food, artistic expression, language, and religion, affect the way children develop emotionally, socially, physically, and linguistically. Tribal children who are removed from their homes and placed in environments that are culturally unfamiliar often suffer trauma and psychological harm.[iv] Any separation of a child from her or his parent is a traumatic experience. The ICWA provides robust protections for the rights of Tribal parents.[v]

Not only has the Indian Child Welfare Act provided much-needed relief for Tribal families and children experiencing household stress while protecting them from excesses from child protection services agencies, but it has also provided a model for child welfare generally and is recognized as the “gold standard” for promoting kinship care as the preferable foster care placement. The Families First Prevention Act (2017) is legislation that best promotes the active efforts requirement.[vi] Since the passage of ICWA, 48 states (all but New Hampshire and West Virginia) have adopted language that favors relatives when children are being placed outside of their homes.[vii] [viii] Twenty-six states require social services agencies to exercise “due diligence,” when seeking possible kin and fictive kin for children.[ix]

It is critical the Supreme Court upholds the constitutionality of the Indian Child Welfare Act at a time when children in the United States are facing enormous challenges to their mental well-being. According to the American Psychological Association, the COVID-19 pandemic has exacerbated a longstanding problem.[x] Prior to the pandemic, data from the Centers for Disease Control (CDC) found 1 in 5 children had a mental disorder, but only 20 percent of those children received care from a mental health provider. The CDC released a report in February of 2022 citing a pronounced increase in children seeking mental health services.[xi] Given the uniquely tragic history of trauma perpetrated by the federal government on Tribal families and children, Congress has every right to pass legislation to protect Tribal children from further psychological damage. The Supreme Court should not take away the protections afforded by the ICWA in the name of colorblindness or by expanding the rights of non-Tribal individuals.