Family separation is a defining feature of the relationship between the U.S. government and American Indian and Alaska Native (AIAN) families and tribal nations. The historical record catalogues this relationship in several ways including the mass displacement of Native children into boarding schools throughout the 19th century and the widespread adoption of Native children into non-Indian homes in the 20th century. Child removal was commonplace, and explicitly directed at the elimination of Native cultures and nations through aggressive assimilation. This violent legacy eventually prompted the passage of the Indian Child Welfare Act (ICWA) of 1978. The ICWA introduced federal protections for Native children, families, and tribes against unnecessary removal and affirmed the role of the tribe as an important partner in child welfare proceedings. To what extent has this landmark legislation changed the prevalence and frequency of Native family separation since 1978? What can be done to reduce the threat of the child welfare system on the well-being of Native families today? In this Article, we use administrative and historical data to statistically evaluate the magnitude of change in AIAN family separation since the passage of the Indian Child Welfare Act and locate the institutional pathways by which AIAN families are funneled into the child welfare system. Our findings reveal that despite long-standing treaty responsibilities to support the health and well-being of tribal nations, high rates of separation among AIAN children persist. In particular, we find that the frequency of AIAN children's placement into foster care has remained relatively stable since the passage of the ICWA, that AIAN children remain at incredibly high risk of family separation through the child welfare system, and that the post-investigation removal decision by child welfare agencies is a key mechanism of inequality in family separation. We situate these findings within theories about settler colonialism and Indigenous dispossession to illustrate that the continuous removal of Native children from their families and tribal communities is not an anomaly. Instead, we argue that the very intent of a White supremacist settler-state is to dismantle Native families and tribal nations. Based upon these findings, we shift our focus away from the particularities of Indian child welfare and argue that the child welfare system more broadly must be abolished in order to stop the routine separation of Native children from their families by the state. Left intact, child protection systems prioritize surveillance and separation over welfare and support, affecting non-White children and families in immeasurable ways. We suggest that the ICWA has provided, and will continue to provide, a necessary intervention to protect Native families so long as this intrusive system remains. We conclude by exploring how an abolitionist approach to child welfare might positively impact Native families by immediately redirecting social and financial resources into the hands of Native families and working cooperatively with tribal communities to promote Indigenous communities of care.
Applying Lessons from the U.S. Indian Child Welfare Act to Recently Passed Federal Child Protection Legislation in Canada
