scholarly journals Native Family Law, Indian Child Welfare Act and Tribal Sovereignty

2020 ◽  
Vol 7 (2) ◽  
pp. 130-147 ◽  
Author(s):  
Zia Akhtar
Keyword(s):  
Native American ◽  
Child Welfare ◽  
First Nations ◽  
Foster Parents ◽  
Economic Security ◽  
Indian Child ◽  
Indian Child Welfare Act ◽  
Course Of Action ◽  
American Children ◽  
The U.S

There has been historical abuse of Native American children in the U.S. which began in the late 19th century in what is known as the residential school movement. It led to their forced integration on pain of removing and eradicating traces of their Indian heritage. The lack of protection for Indigenous children in being transferred from the reservations to non- Indian foster parents caused the U.S. Congress to use their legislative power and enact the Indian Child Welfare Act of 1978 [ICWA]. This has intervened in a process that is aimed at keeping Native American children within the tribe of their parents over the last 35 years. The result of the ICWA is that it has led to the greater supervision by tribal courts over children but it has caused a conflict to arise with the state courts due to jurisdictional reasons that allows guardianship and supervision to non-Indian parents. The Arizona Court of Appeals has recently ruled in Navajo Nation v. Arizona Department of Economic Security (2012) CA-JV 11-0123 that an Indian child can stay with his non-Native foster parents despite the protests of the tribe that it was infringing the provisions of the statute. This article is intended for the practitioner and policy makers and brings to the fore the issues of the preservation of children on reservation lands, and the need for a greater care consideration in the determination if they should be transferred to foster parents outside the tribe’s jurisdiction. It also conducts a comparison with Canada where First Nations children have also suffered abuse and where there is an ongoing debate about the course of action to prevent the appropriation of children from the reserves to live with the non-Native foster parents.

The Indian Child Welfare Act: A Review

1993 ◽  
Vol 9 (1) ◽  
pp. 47 ◽  
Author(s):  
Suzanne Garner
Keyword(s):  
Child Welfare ◽  
Indian Child ◽  
Indian Child Welfare Act

scholarly journals Abolition, settler colonialism, and the persistent threat of Indian child welfare

2021 ◽  
Author(s):  
Frank Edwards ◽  
Theresa Rocha Beardall
Keyword(s):  
Child Welfare ◽  
Settler Colonialism ◽  
Well Being ◽  
Child Welfare System ◽  
Welfare System ◽  
Indian Child ◽  
Family Separation ◽  
Indian Child Welfare Act ◽  
Tribal Communities ◽  
Tribal Nations

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.

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