M3 - The Indian Child Welfare Act (ICWA)
The resource I’ve examined is the Tribal
Courts of New York, specifically the Indian Child Welfare Act. As an
extension to Child Protective Serves, ICWA provided greater consideration to
the child’s future well-being with regard to culture, language, and community.
As part of our reading resources this is an important one because it gives an
understanding of the conditions under which children are considered to be
placed under care of the state, or in this case – the tribe. I find this act
heartening due to the consideration it provides, but I remain dismayed that it
needed to be put into effect to begin with. I make more statements about this
later on.
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ICWA, or the Indian Child Welfare Act, established in
1978, was brought forth to handle issues regarding the removal of Native
American children from their families (Tribal Courts of New York). Why was this
necessary? Because of a variety of reasons that were found detrimental to
removed children. For example, in 1978, 85% of NA children removed from their
families were placed outside of their communities without regard to additional
family members who were willing and able to care for them, thus cutting the
children off culturally, linguistically, and more (NICWA – Setting the Record
Straight). To say that this practice created additional trauma in the children
by removing them from their heritage and community is an understatement.
Does this scenario sound familiar? We just read about
Native children being separated from their families and communities and
shuttled off to white boarding schools, and albeit this heinous practice lasted
(unbelievably) until the 1960’s, CPS (Child Protective Services) continued
right where it left off with the forced removal of Native children to
non-native homes. As an example, by 1970 more than 5000 Native children had
been removed and placed into Mormon homes (Wilkinson). With the inception of
the ICWA, extended families would be considered as alternate placement when
children needed court mandated care. ICWA provided a buffer of sorts, between
ignorant CPS Social Workers who knew nothing of Native values, and the internal
needs of tribes whose families needed special attention and care with regard to
their children.
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What I find compelling is that while we generally think of
CPS getting involved in cases where children were not living in a safe home
environment and are possibly exposed to illegal substances and other practices
that accompany extreme poverty – the state of extreme poverty among Native
families on reservations would not have happened were it not for good
old Manifest Destiny and the decimation of Native lands and culture. Am
I right? (Since this is a blog I can insert my personal opinions). I don’t
argue that there are indeed cases where children will fare better away from
parents who may be unable to care for them (just like white children) but the
compassion that is happening through ICWA makes the transition for NA children
better and also secures a more positive future for them within their culture.
Another interesting fact is that ICWA is a federal law and can be enacted by
States but States cannot subtract from Federal ICWA law (Burt). The following
are criteria that define an Indian child:
- · Unmarried, and under 18 years old
- · And a member/enrolled of a federally recognized tribe
- · OR – Eligible/enrollable as a member and the biological child of a member
New York State adds to that with:
- · A child who is a member or eligible to be of any state recognized tribe (Cayuga, Oneida, Onondaga, St. Regis Mohawk, Seneca, Tuscarora, Tonawanda Seneca)
- · Any child under 21 years who came into care before age 18
- · A biological child of a member of a federally or state recognized tribe and the child lives on reservation on tribal land
Finally, there is a story about ICWA as told by Allie
Greenleaf Maldonado, Chief Judge, Little Traverse Bay Bands of Odawa Indians,
of the Turtle Clan. She writes about her (now) son, native by birth but the
birth mother had him in Nevada. Nevada authorities took the baby and placed him
into a non-native family, but because of ICWA he was transported back to
Michigan where Allie and her husband were eventually able to adopt him. He is
now growing up within his culture and, as Allie states “He is potentially thenext generation of tribal leadership.”
References
Burt, Margaret. Indian Child Welfare Act Presentation. http://www.nyfedstatetribalcourtsforum.org/pdfs/ICWA12NYS-handouts1.pdf
Maldonado, Allie. http://myemail.constantcontact.com/When-ICWA-is-Followed--Children-Can-Thrive.html?soid=1102238947047&aid=07Pab3zwTt8
National Indian Child Welfare Association. Setting the Record Straight. https://www.nicwa.org/wp-content/uploads/2017/04/Setting-the-Record-Straight-ICWA-Fact-Sheet.pdf
Tribal Courts of New York. Projects. The Indian Child Welfare Act. http://www.nyfedstatetribalcourtsforum.org/history.shtml
Wilkinson, Charles F. (2005). Blood Struggle: The Rise of Modern
Indian Nations. New York: W.W. Norton & Co.
The ICWA is very important to all tribes. Generations of tribal children were taken from their homes. Great post. NN
ReplyDeleteHi Professor. As I read about NICWA I found myself moved to support them as an organization. I'm pretty picky about what I choose and I tend to research them as best I can before making any decisions, but this was one I think is a necessity. The future is in the children. It's not possible to completely wash away generational trauma, but acknowledging the trauma as well as providing a bright and progressive future will bring hope and purpose to many children. As Allie Greenleaf stated (I'm paraphrasing) "The children of today are tomorrows potential tribal leaders". I would add that hopefully they would be in greater numbers in American political positions and many other leadership roles.
DeleteAfter reading your post about ICWA I decided to learn more about it. I found a resource on the National Indian Law Library and Section 8- Role of Tribal Courts caught my attention. After each section there are Questions and Answers that provide additional information. A tribal court can be transferred a child custody case from a state court at the request of a parent, Indian custodian or the tribe. For Indian children that live on native lands the tribal court has exclusive jurisdiction.
ReplyDeleteA tribal court is allowed to intervene in a state custody proceeding because they have the authority to act on behalf of the tribe. At times the tribal court may have hearings off reservation, even in state courts for the convenience of those who need to attend. A tribal court, under federal law does not have to accept the state courts decisions. In particular many tribes would not terminate parental rights. The only reason they would have to recognize state court orders is if the tribal law required it " under full faith and credit or comity" (National Indian Law Library).
When a transfer is made to a tribal court they can request that the child remain in placement with county or state. This would be done when the child is receiving services that cannot be provided in the tribal community. Funding for any services received prior to the transfer to the tribal court are still the county or state agencies responsibility. There are some cases where transfers are made from one tribal court to another when it is determined the child(ren) belong to another tribe. The ICWA gave tribal courts and tribes much more control over what happens to their children.
Reference:
National Indian Law Library. Retrieved from: https://www.narf.org/nill/documents/icwa/index.html
Hi Gary. You scoped out some good information! I was aware of the process in general but understanding the steps and how a case is handled is very helpful. What is interesting to me is that in non-native CPS cases, no thought is given to the child's cultural heritage and where he/she is placed in a new home,. Often times it is whatever is available. But the advent of NICWA brings to mind the consideration of 7 generations forward, and that in Native culture there is a deep understanding of the necessity to raise children under the blanket (so to speak) of Indian heritage in order for the child to retain strength in their identity. I just read a very moving story from Genocide of The Mind titled The Genocide of a Generations Identity by Gabriel Horn. The young man in the story was raised by his two Indian uncles. He says "...they taught me about the Great Mystery, the essential concept of Native American belief. Over time I would learn the significance of understanding this indefinable and incomprehensible totality that always was and always will be, and that without this understanding there exists no way to truly comprehend what it means to be Indian...." This story underlines the importance of Native children being raised in native homes.
DeleteYour enlightening me about the NICWA, was a new territory for me. In another post the author spoke of boarding schools. Your post speaks of the laws that placed the children in the schools and white homes. Interesting.
ReplyDeleteI want to raise this issue. As I understand it some of the conditions on reservations had families living below the poverty level. Would it not perhaps be a good thing to move these children to a better home life? My only other concern would be, along with better living conditions, to allow the children to get the opportunity get some also teachings in their culture. Which means to return home periodically.
Hi Kenny. Your question is a good one. And I don't know if there is an easy answer. I think Child Protective Services looks on a case by case basis, because there can be complexities to every situation. The bright light that NICWA provides is that, if a child does need to be removed from their parental home, that extended family or even another family among the tribe (or even another tribe) be considered first. Prior to NICWA, I don't doubt there were well-meaning white people involved in many cases who deemed it best that a child be removed - and they did this not out of bad intentions but I think they were not fully cognizant of the importance of retaining native culture in the child's upbringing. Having CPS in anyone's history can be a traumatic experience, but added to that the removal of a complete array of cultural values is creating a whole new level of trauma for the child. At least that is my thought.
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