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 Canadas 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. Congresss 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
questions fate.
For Native American children, ICWA, again, depending upon
ones 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 familys 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.
