It takes a tribe: Indian Child Welfare Act under assault

Written by Bill John Baker

Thirty-eight years ago, the federal government passed a law to keep Indian children safe. Today that promise, embodied in the Indian Child Welfare Act, is under assault.

America’s multi-billion-dollar adoption industry and its allies seek to undermine ICWA’s enforcement by filing lawsuits they hope to take to the Supreme Court. If successful, the lawsuits would deny tribes of their right — and their duty — to look after the welfare of their children.

As Indian people, we’ve always known that it’s in our children’s best interests to stay in their families’ homes and to remain connected to their tribes. In 1978, Congress recognized this fact and passed ICWA, which aims to “protect the best interests of Indian children and to promote the stability and security of Indian tribes and families.”

Congress passed ICWA because such protections were desperately needed. In the 1970s, state officials would frequently tear Indian children from their homes for reasons of cultural chauvinism and ignorance. Then children were served up to America’s adoption industry. ICWA hoped to stop this cultural genocide by creating a legal presumption that Indian children belong in their own homes or with other family or tribal members.

To guarantee this protection, ICWA gave tribes the ability to intervene in state courts on behalf of tribal children who had been removed from their homes.

Today, the ability of tribes to protect their children remains vital.

Consider the case of an adoption attorney in Oklahoma who was recently charged with 25 felony counts, including child trafficking. Sadly, those who make a living offering Indian children up for adoption often stoop to dubious tactics. Without ICWA, tribes would be helpless to protect those children.

Yet attacks on the law continue. Recently, the Goldwater Institute — claiming to speak for all Indian children in foster care or up for adoption — filed a lawsuit, hoping to have the Supreme Court declare ICWA unconstitutional.

This would strip Indian children of the law’s valuable protections. The Court would have to decide that it knows the best interests of tribal children better than their tribes do. This would be breathtakingly arrogant and ignore the repeated failures of the United States to protect tribal children.

For example, ICWA requires proper notice to parents and tribes of adoption proceedings. This helps ensure all adoptions are fair and transparent. Only those trying to force or illegally procure adoptions would be opposed to such minimum safeguards.

Casey Family Programs, the Child Welfare League of America, and several other child welfare organizations in response to Goldwater’s legal challenge said ICWA “applies the gold standard for child welfare decisions for all children, and unraveling its protections could cause significant harm for Indian children.”

These organizations deal with both private adoptions and state foster-care cases. And they all agree that the “ICWA embodies the best practices in child welfare.” We’ve known this for years.

History shows that only Indian people can be counted on to protect their children. The adoption agencies seeking to overturn the ICWA claim that they know what is best for Indian children. But often, their interest lies in collecting adoptions fees quickly and with minimum fuss.

Tribal nations will defend the ICWA with everything they have. Fortunately, President Obama has been a staunch ally in honoring the federal government’s promise to uphold the ICWA. This country must not return to a time in which others decide what’s best for tribal children.

Bill John Baker is the principal chief of the Cherokee Nation.