House Natural Resources Committee Roundtable Discusses ICWA

During a virtual roundtable discussion held by the U.S. House Natural Resources Committee about the Indian Child Welfare Act (ICWA), lawmakers listened to experts who shed light on the disturbing history of the U.S. government removing Native children from their homes. They also heard personal experiences regarding the effects of growing up as a Native child in a non-Native society.

The roundtable focused on potential threats to the ICWA’s constitutionality, featuring four expert panelists who shared their insights. The panel included Maggie Blackhawk, a professor of law at New York University School from the Fond du Lac Band of Lake Superior Ojibwe; Jack Trope, the Senior Director for Indian Child Welfare Programs at Casey Family Programs; Veronica Krupnick, the Foster Youth Advocacy Programs Coordinator of CASA First; and Karen Returns to War, the Co-Chair of the Northern Arapaho Tribe.

During her presentation, Maggie Blackhawk drew a parallel between the historical practices of Native children being forcibly removed from their homes and sent to Indian boarding schools, and the current trends of Native children being placed in foster care and put up for adoption.

“Over time, as states assumed more responsibility for the welfare of Native children, they began removing those children from their homes at unprecedented levels,” Blackhawk said. “Eighteen states were explicit that privatizing support for Native children would further reduce welfare costs and fill remaining federal funding gaps because Native children required far fewer welfare dollars when placed in the home of a middle class or wealthy foster or adoptive family than in the home of a Native family living in poverty.”

The Indian Child Welfare Act (ICWA), enacted in 1978, serves as a guideline for state governments in managing child abuse, neglect, and adoption cases involving children of tribal citizenship. This law mandates minimum standards of accountability and care when a Native child enters the welfare system.

Prior to the implementation of ICWA, Native children were often removed from their families and communities by state and private adoption agencies, without sufficient evidence of harm or neglect. A staggering eighty-five percent of these children were placed in non-Native households. Currently, ICWA compels state caseworkers to make earnest efforts to keep Native children within their own communities.

The ICWA has recently garnered significant public attention due to the impending Supreme Court case, Brackeen v. Haaland, which questions the act’s constitutionality. The case was argued in November, with a verdict anticipated in late June.

The chief argument opposing ICWA is that it promotes racial discrimination and puts the interests of tribes above the welfare of Native children.

In response to the racial discrimination claim, tribal nations and the U.S. Department of Interior have asserted that ICWA isn’t based on race. Instead, it acknowledges American Indian tribes and their members as a political group, with any challenge to ICWA seen as a challenge to Tribal sovereignty.

“Like many other child welfare and adoption organizations, Casey Family Programs considers ICWA to be the Gold Standard for child welfare,” Thorpe testified at the roundtable. “ICWA emphasizes keeping children safely with their parents/guardians whenever possible (active efforts requirement) or, if they cannot be kept with their parents/guardians, keeping them connected with their relatives, communities, and cultures (placement preferences, community standards, transfer to tribal court). We know children thrive with their families and in their communities.”

Krupnick, who was an Indigenous child removed from her community, shared the experience she had in the child welfare system.

“My value, my self-worth became directly tied to how much I believed my now-adopted parents and family wanted to keep me,” Krupnick said. “And with this driving belief—as a child, as a teen, as a young adult—I didn’t even realize I was hurting myself trying to mold into a person that I would never be and abandoning pieces of myself that were incredibly essential to my well-being and my healing. So instead of finding joy and connection and healing in my identity as an Indigenous person, these were replaced with feelings of guilt, anger, shame, and even embarrassment.”

Whether Congress was within its constitutional right to ratify ICWA is a major factor in the challenge to the law in Brackeen v. Haaland. When asked her views on this legal argument, Blackhawk said:

“The historical record confirms that the care and education of Native children fall squarely into the constitutional powers of Congress. The constitutional challenges to Brackeen are unfounded and could result in the deeply ironic situation where the constitutional values that we have elevated to reckon with other constitutional failures—specifically, the institution of human enslavement and Jim Crow segregation—might be used to further the American colonial project today.”