Indian Child Welfare Act prioritizes family reunification  

The case before the U.S. Supreme Court today challenging a 1978 law governing the welfare of Native American children could upend what has long been considered the gold standard for protecting the best interests of the child in custody cases.

The Indian Child Welfare Act (ICWA), at issue in Brackeen v. Haaland, emphasizes reunification of Native American children with tribal families. The statute requires “active efforts” to prevent a Native American child from being removed from their home, and, once removed to keep the child within the tribe and reunify the child with family. The “active efforts” standard is a higher standard than the “reasonable efforts” standard required by other child welfare laws and child welfare experts widely consider it best practice.

“We should actually be expanding the active efforts concept,” said Aubrey Edwards-Luce, an attorney who leads First Focus on Children’s Child Welfare and Racial Equity (CWARE) Collaborative. “One of the overarching arguments in this case is that the Indian Child Welfare Act puts the rights of the tribe before best interests of the child, but in fact the opposite is true. The law’s consideration of the child’s connection to their community is an essential part of assessing their best interest. When Congress passed ICWA, it provided and increased levels of protection and respect for a child’s connection to their culture and background and community. We think that standard should apply to all children, especially those whose backgrounds have been used to marginalize them.”

Congress passed ICWA to end decades of forced assimilation of Native American children by removing them from their tribes and placing them with non-Native families or in boarding schools. The challengers argue the law violates the 14th Amendment and unfairly gives preference to one race over another. Courts have repeatedly ruled that ICWA is not “race-based,” but rather acknowledges the political status of tribal citizenship and Congress’ authority to govern federal interaction with tribes.

Between 25% and 35% of Native American children were being taken from their homes and placed with adoptive families, in foster care or in institutions before ICWA, according to the Associated Press. Most were placed with white families or in boarding schools in attempts to assimilate them.

“Native American young people and children are disproportionately represented in the child welfare system at every stage,” Edwards-Luce said. “They are investigated disproportionately, put in foster care disproportionately, and congregate care disproportionately.”

The CWARE Collaborative, established in 2020 by the advocacy organization First Focus on Children, is a coalition of organizations dedicated to transforming the child welfare system with guidance and leadership from those with lived experience as foster children, youth, parents, kinship care givers, and foster parents. The Collaborative promotes racial and cultural equity within the child welfare system so that children, parents, and families are free to thrive in their homes and communities.

The Collaborative supports efforts to strengthen and protect ICWA such as the bipartisan Strengthening Tribal Families Act, which would strengthen and support enforcement around ICWA. Introduced by Rep. Judy Chu (D-CA) and Rep. Don Bacon (R-NE), the legislation would assist state and local child welfare agencies with implementing ICWA.

First Focus on Children is a bipartisan advocacy organization dedicated to making children and families a priority in federal policy and budget decisions.