What impact does Indian Child Welfare Act of 1978 have on women, children, people of color, people of low-income, LGBTQQI people, and/or immigrants?
Passage of the Indian Child Welfare Act in 1978 was intended to preserve Native American culture and families by stemming the placement and adoption of Native American children outside of their extended families and communities.
Following centuries of efforts by European settlers and later North American governments to decimate indigenous tribes and, in what the Chief Justice of Canada’s Supreme Court, Beverley McLachin, called a policy of “cultural genocide,” what was left of native tribes were destroyed communities devastated by drug and alcohol abuse and broken families.
A direct consequence of those broken families and high levels of substance abuse was the entry into state foster systems and adoption processes of large numbers of Native American children. As those most financially capable of working through adoption systems and those most frequently being certified as foster families have been those of European heritage, Native American children in need of placement with families were placed with families of European heritage. A vicious cycle was created in which the legacy of colonial rule created genocidal conditions that were “fixed” through policies and practices that inadvertently exacerbated the condition of cultural genocide. Congress’s response was the Indian Child Welfare Act (25 USC 1901-03).
The intent of the Indian Child Welfare Act, or ICWA (pronounced “Ickwa”) was to reverse the trend of Native American children being raised outside of Native American families and culture. Section 1902 of the Act reads as follows:
Congressional declaration of policy: The Congress hereby declares that it is the policy of this Nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs. (Pub. L. 95-608, § 3, Nov. 8, 1978, 92 Stat. 3069.)
What this means for low-income families, women, children, LGTBQQI, etc. is dependent upon the ethnicity of these various categories of individuals and families. As noted, the intent of the law is to maximize the prospect that Native American children will grow up in Native American homes and communities, preferably by members of their own extended families. Nowhere in the law does it specify whether the Native American family members can or cannot be homosexual, bisexual, transsexual, or heterosexual. It is up to the deciding judge (and many judges, even in communities with large populations of Native American families, know or care little about ICWA) to make the decision on the child in question’s fate.
For Native American children, ICWA, again, depending upon one’s perspective, can be a mixed blessing. Native American children placed with Native American foster families or adopted by Native American parents will benefit from immersion in Native American culture. A serious problem, however, emanates from the aforementioned rates of substance abuse and dysfunctionalism in some Native American communities.
Whether a Native American child is better off with a family of European descent that is financially stable and healthy or with a Native American family dealing with social and medical problems endemic to those communities is worth debating. A Native American child placed with a Native American family, especially one to which the child is related, that is stable is the best outcome, but that outcome is difficult to achieve in many tribal regions. Placement with a LGTBQQI family that is financially stable and welcoming can also be an ideal outcome irrespective of that family’s ethnicity.
The intent of ICWA is admirable and clearly enunciated in the text of the statute. It is not, however, always the best guide to placement of children.
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