Challenges to Indian Child Welfare Act Concern Native Americans

On Mother’s Day 2015, Iva Johnson, a member of the Navajo Nation living off reservation in Flagstaff, Arizona, suffered a heart attack and fell into a coma. When she opened her eyes days later, she saw two unfamiliar women sitting at the end of her bed.

“I was trying to focus, and I was thinking to myself, ‘Oh my gosh, did I die?’” she said. 

The women explained they were caseworkers from Arizona’s Department of Child Safety (DCS) and would be removing three of Johnson’s children from the home because there was no one to care for them.

Johnson wanted to tell them that the oldest child, 21 and a legal adult, lived at home and could look after her siblings, but breathing and nose tubes prevented Johnson from speaking.

“All I could do was shake my head ‘no,’” said Johnson. “That’s when one of the ladies turned around and pulled out this little ink pad. And she dabbed my thumb into that inkpad, and she smacked it on that paper. And then she said, ‘Well, we’re going to leave you now. We hope you get better soon.’”

Three years of court battles followed before Johnson was reunited with her children. They had been rotated, separately, from one non-Native foster home to another.

It was to prevent situations like this that Congress passed the 1978 Indian Child Welfare Act (ICWA), after learning that as many as one-third of all Native American children had been taken from their families and placed in non-Native homes.

Law under threat?

ICWA outlines a set of standards for such removals.

“Before you can place an Indian child in a non-Indian home, you have to first look for another member of the immediate family, then another member of the tribe, then another Indian family before you can place that child in a non-Indian home,” said Stephen Pevar, an American Civil Liberties Union senior staff attorney who works in its Racial Justice Program.

Johnson states that Arizona’s DCS failed to follow procedure. The office did not respond to VOA’s request for comment.

Today, like many Native Americans, Johnson worries that two recent court decisions could pave the way for many more parents to lose their children.

On Oct. 4, Judge Reed O’Connor in the Northern District of Texas federal court struck down the ICWA as “unconstitutional,” saying it discriminates against non-Native couples looking to adopt Native children.

The lawsuit was filed by a group of parents and attorneys with the support of the Goldwater Institute (GI), a libertarian research group based in Arizona. In a brief filed in support of the Texas plaintiffs, Goldwater attorneys argued that ICWA imposes restrictions based on race, not the best interests of Indian children. Further, Goldwater said the ICWA is a federal government attempt to intrude on matters that should be decided by the state.

In a statement on its website, the institute said it remains committed to ensuring that Native American children are no longer denied “the same strong protections against abuse and neglect” that children of other races already enjoy.

Most tribes see the ruling as an extension of decades of U.S. assimilation policy that nearly cost tribes their cultures, and tribes look to youth to preserve future cultures.

“This case, unfortunately, is part of a well-funded multiyear effort by antitribal interests, who use Indian children as weapons in their assault on ICWA and on tribes more broadly,” said Native American Rights Fund attorney Erin C. Dougherty Lynch via email. “It is a shameful, nakedly political effort … to undo decades, even centuries, of settled law.”

The National Indian Child Welfare Association expressed a further concern that the Texas decision could lead to constitutional challenges to many other federal Indian laws.

The ruling comes in the wake of a federal appeals court’s reversal in September of a 2015 U.S. District Court ruling that South Dakota had violated the ICWA by failing to notify parents prior to removal hearings, denying parents and tribes a voice in the proceedings.

Scarred for life

The social isolation, poverty and poor health care services on many reservations have contributed to high rates of alcohol and drug abuse and related crime.

An examination of more than four dozen child removal cases in Pennington County, South Dakota, during 2014 revealed that alcohol was a factor in more than half of the removals. Domestic violence was cited in 22 percent of cases. Child abuse was given as a reason in 9 percent of all cases.

Studies also demonstrate that when children are removed from homes and placed in foster care, the trauma that results can lead to poor self-esteem, mental health problems, substance abuse and a variety of behavioral problems. Birth parents suffer loss, guilt and shame.

“And it’s even worse when you place somebody in a different culture, which is usually what happens to Indian children,” said the ACLU’s Pevar.

Jace Roe, 41, can attest to that.  Born on the Northern Cheyenne Reservation in Montana, he was taken from his mother as an infant. Initially fostered by an aunt in Minnesota, he was later raised in a non-Native home.

“Everything was different there,” he said. “They didn’t understand my culture or where I was coming from. They didn’t understand the humor that goes along with my culture or the way we interact with each other.”

One of the only minority youth in school, Roe said he faced constant bullying.

“I grew up ashamed of who I was, ashamed of being Native, he said. “I wished I was white.”

Roe turned to drugs at an early age and would not overcome addiction for decades.

“It took a lot of work,” he said, “and I’m still in therapy to talk about these issues of shame, anger and disappointment.”

Roe said he believes placing Native children in non-Native homes does more harm than good.

“It doesn’t give them a sense of who they are. It doesn’t instill any pride,” he said.

The U.S. Department of the Interior (DOI) opposes any diminishing of the ICWA, saying child advocacy groups have considered it the “gold standard of child welfare policy.”

As for Pevar, he said he isn’t too concerned about these legal setbacks.

“There have been challenges to ICWA from Day One,” he said, but said he thinks the law will prevail.

your ad here