The ongoing effort to save the Indian Child Welfare Act from legal challenges and colonial messaging

Efforts to overturn the Indian Child Welfare Act (ICWA) have been going on almost since it was passed.

Researchers have reviewed editorials and commentaries over 40 years to show how writers have tried to sway public opinion against ICWA. The findings were recently published in The Indigenous Peoples’ Journal of Law, Culture & Resistance at UCLA, under the headline “Editorializing ICWA: 40 Years of Colonial Commentary.”

“There is a clear agenda and public relations campaign presented in our research of anti-ICWA columns, particularly those from the 21st century,” the article says. These columns “use a settler colonial ethic in an attempt to ‘destroy’ ICWA and ‘replace’ Native parents with white couples.”

The ICWA issue is coming to a head (again). On Feb. 28, the U.S. Supreme Court agreed to hear Texas v. Haaland, a case challenging ICWA’s constitutionality. At issue is whether ICWA discriminates based on race by giving custody preference to the Indian child’s extended family, the child’s tribe, or other Indian families over non-Indian adoptive parents?

What is ICWA?

Congress passed the Indian Child Welfare Act (ICWA) in 1978 in response to ongoing Native American genocide through assimilation policies. It had bipartisan support.

State child welfare agencies were removing large numbers of Native children from their homes and placing them with white families, cutting them off from their extended families, traditions, and cultures.

Research done prior to ICWA found that 25 percent to 35 percent of all Native children were being removed from their homes, according to the National Indian Child Welfare Association. Of those, 85 percent “were placed outside of their families and communities—even when fit and willing relatives were available.”

These adoption policies were an extension of the Boarding School Era, where Indian children were removed from their homes and placed in church- or government-run boarding schools where they were forbidden to speak their language, wear their traditional clothes, or practice their traditions.

“It is difficult to overstate the despair and desperation that Tribal Nations experience when their children are removed from their communities without their consent,” wrote the authors of 40 Years of Colonial Commentary. “Before ICWA, there was an assumption (often explicit) in mainstream culture that Native children would be better off if they were raised by a non-Native family.”

Being ‘Indian’ is more than a racial category

Native identity has been a contentious issue for centuries. For instance, some tribes use hereditary lineage to determine tribal enrollment. Other use “blood quantum” (a practice imposed by the U.S. government and adopted by some Native Nations.)

However defined, “Tribal Nations are generally understood as having exclusive authority over determining who can be a citizen of the Tribe,” the law journal article said. “ICWA is a law that is centered on Indian children.”

Arguments by ICWA opponents “rests largely upon the flawed assumption that Native people are strictly a racial category and not citizens of independent sovereign governments.”

The article quotes pro-ICWA lawyer Mary Kathryn Nagle (Cherokee), who “explains how being a tribal citizen is mutually exclusive from race, explaining “[j]ust as citizens of the United States can belong to any race, citizens of tribal nations are of many different races. Lumping all tribal citizens together as ‘one race’ is itself racist and undermines the sovereignty of tribal nations.”

‘Worthy’ and ‘unworthy’ parents

A thinly veiled argument ICWA critics use regards “the fitness of white parents and the unfitness of Native parents,” and the claim that ICWA legitimizes abuse.

Many editorials defame biological Native parents as unfit for parenting, often through insinuations and stereotyping. Mothers and other female caregivers are particularly subject to these allegations when
editorialists employ the language of social morality. For example, one editorial passes judgment on the relatively young age of a Native grandmother), a fact wholly irrelevant to the case itself. …

White parents in anti-ICWA editorials are commonly described as nearly angelic, generous of spirit for adopting Native children, loving, stable, and financially successful. Fourteen editorials characterize foster parents as “loving,” while the word “love” is rarely used in the context of Native biological parents.

Editorializing ICWA: 40 Years of Colonial Messaging

While outliers, a few commentaries used overtly racist language. One anti-ICWA editorial used the headline “Paleface Paternalism,” another “Slaves to the Tribe.” A few referred to ICWA as “‘barbaric,’ a word inextricably linked to colonial ideas of Native savagery.’” Perhaps the most egregious example was a commentary in Daily News of Los Angeles, which compared ICWA “with child sacrifice.”

Check out the full article here.

The authors are Sarah Deer, Elise Higgins, and Thomas White. Deer formerly taught at William Mitchell College of Law. She is now a Distinguished Professor teaching at the University of Kansas and serves as the Chief Justice for the Prairie Island Indian Community Court of Appeals.

One thought on “The ongoing effort to save the Indian Child Welfare Act from legal challenges and colonial messaging

  1. judge Thomas M.Anich wrote the icwa because so many kids were being removed from their homes and given to white families!


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