ICWA Puts Tribes’ Interests Ahead of Children’s

On November 26, 2013, a Spirit Lake Indian reservation woman was sentenced to 30 years in prison for throwing her step-grandaughter down an embankment and killing her. Lauryn Whiteshield and her sister had been removed from a non-Indian foster family and placed with her grandfather and his wife, despite her long history of child neglect.

That’s because the Spirit Lake Sioux Tribe had invoked their powers under the Indian Child Welfare Act (ICWA) to place the children on the reservation.

Congress passed ICWA in 1978 to alleviate a national crisis, the wholesale separation of Indian children from their families. But in attempting to right a wrong, Congress created a new threat to the safety and well-being of Indian children. It established a weaker set of protections for Native American children and subordinated their best interest to that of the tribe.

The problem with ICWA begins with how it defines an “Indian child.” Any child who is either a member of an Indian tribe or is eligible for membership in a tribe, and is the biological child of a tribe member, is considered an Indian child. While some tribes require a certain percentage of Indian ancestry, others (like the nation’s largest tribe, the Cherokees) will accept those with any amount of Indian blood.

There is no requirement that the child or parent has any connections to the tribe or its culture. That’s how tribes end up deciding the fate of children whose Native American ancestry is less than two percent and who have no social or cultural connection to a tribe.

ICWA gives Indian tribal courts jurisdiction over child custody cases involving Indian children living on a reservation. For other Indian children, the state court is required to transfer the case to the tribal court if either parent, or the child’s Indian custodian, requests it.

If the case remains in the state court, the tribe also has the right to intervene at any time in the proceedings, and can request transfer to tribal court. That’s what happened to Lauryn Whiteshield.

ICWA requires a higher standard of proof to remove an Indian child or terminate the rights of an Indian parent. An agency requesting that an Indian child be placed in foster care or adoption must prove that “active efforts” were made to prevent the breakup of the family.

This standard is more difficult to meet than the “reasonable efforts” required for all children under Title IV-E of the Social Security Act. This makes it more likely that Indian children will be left in dangerous homes.

If the court orders a foster care or adoption placement, ICWA establishes an order of preferences, with a member of the child’s extended family being the first choice for both foster care and adoption. For an adoption, the second choice if a member of the extended family is unavailable is other members of the child’s tribe and the third choice is other family members.

This makes it easy for tribes to take children away from adoption-minded foster families that may have raised them from infancy.

ICWA is often used to override the preferences of one or both parents about who will raise their child. In 1985, twin babies were born to Choctaw parents living on a Mississippi reservation. The parents drove 200 miles to give birth, hoping to escape tribal court jurisdiction, and chose a non-Indian adoptive family. The tribe brought the case to the Supreme Court, which upheld the jurisdiction of the tribal court.

Ultimately, the tribe returned the babies to the adoptive family chosen by the parents. But the tribe’s right to overrule parents on custody for their children continues in effect.

New guidelines issued by the Bureau of Indian Affairs attempt to dispel any doubt about whether the child’s best interests should play a role in Indian child welfare proceedings. They state that courts should not “conduct an independent analysis of the best interests of the child” in making decisions about foster care or adoptive placements, because placement in an Indian home is presumed to be in an Indian child’s best interests.

The Goldwater Institute recently filed a class-action suit in Arizona that “challenges the constitutionality of ICWA requirements that make the best interests of an Indian child less important than the desires of an Indian tribe when deciding foster care or adoption placements.”

ICWA is an example of a well-meaning policy with unintended consequences. Instead of protecting Indian children, ICWA subordinated their interests to that of the tribe.

Earlier this month, the Obama Administration announced its continuing commitment to robust enforcement of ICWA. It’s unfortunate that it did not instead propose amending ICWA to give Indian children the same protections as their non-Indian peers.

This column was published in the Chronicle of Social Change on May 10, 2016.