Abolition, Settler Colonialism, and the Persistent Threat of Indian Child Welfare

Family separation is a defining feature of the U.S. government’s policy to forcibly assimilate and dismantle American Indian and Alaska Native (AIAN) tribal nations. The historical record catalogues the violence of this separation 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-Native homes in the 20th century. This legacy eventually prompted the passage of landmark legislation known as the Indian Child Welfare Act of 1978 (ICWA). ICWA introduced federal protections against the unnecessary removal of Native children and affirmed the role of the tribe as an important partner in child welfare proceedings. To what extent has the federal government honored the commitments of ICWA and reversed the trajectory of Native family separation since 1978? What can be done to reduce the threat of the current child welfare system on the well-being of Native families? In this Article, we use administrative and historical data to statistically evaluate the magnitude of change in AIAN family separation since the passage of ICWA and locate the institutional pathways that funnel AIAN families into the child welfare system. We find that, despite long-standing treaty responsibilities to support the health and well-being of tribal nations, AIAN children remain at incredibly high risk of family separation. In particular, we find that the frequency of AIAN children’s placement into foster care has remained relatively stable since the passage of ICWA 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 homes is not an anomaly. Instead, we argue that the very intent of a white supremacist settler-state is to dismantle Native communities. Based upon these findings, we argue that the child welfare system in its entirety must be abolished in order to stop the routine surveillance and separation of Native and nonWhite children from their families by the state. We suggest that 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 envisioning an abolitionist approach that immediately redirects social and financial resources into the hands of Native families and works cooperatively with tribal nations to promote Indigenous communities of care.

Twentieth Century Black and Native Activism Against the Child Taking System

This Article argues that the historical record supports activism that takes the abolition of the child welfare system as its starting point, rather than its reform. It explores the birth of the modern child welfare system in the 1950s as part of the white supremacist effort to punish Black communities that sought desegregation of schools and other public accommodations; and Native communities that fought tribal termination and the taking of indigenous land. Beginning with the “segregation package” of laws passed by the Louisiana state legislature in 1960, the Article shows how cutting so-called “illegitimate” children off the welfare program, called Aid to Dependent Children, (ADC) and placing those whom their mothers could no longer support in foster care was an explicit response to school desegregation. While the National Urban League initially mounted a formidable national and international mutual aid effort, “Operation Feed the Babies,” its ultimate response—appealing to the federal government to reform the welfare and child welfare systems— backfired in disastrous ways. The Eisenhower administration responded by providing federal funds for a program it called ADC-foster care, giving states resources to dramatically expand the foster care system, resulting in hundreds of thousands of Black children in foster homes within a year. Native Tribal nations, in contrast, fought throughout the late 1960s and 70s to get states out of Indian child welfare. After a decade of activism, in 1978, they succeeded in passing the Indian Child Welfare Act, which put American Indian kids under the jurisdiction of tribal courts instead of the states’. Over the next decades, the number of Native children in foster care shrank dramatically. While history rarely offers clear guidance for the present, these two stories strongly suggest the limits of reform for state child welfare systems, and the wisdom of contemporary activists who call for abolition.

Mechanisms of American Indian and Alaska Native Inequality in Child Welfare Across U.S. States.

American Indian and Alaska Native children are separated from their families by state child welfare agencies at exceptionally high rates. This study connects contemporary trends in Native family separation to histories of Indian child removal, and provides insights into the geographies and institutional sites where inequalities emerge. We find that the total number of AIAN children in foster care or adoptive homes in states with large Native populations has increased since the passage of the Indian Child Welfare Act (1978). We find that risks of child welfare system contact are highest for AIAN infants, and that risk is highly variable across states. Our estimates show that in high risk states at 2014 - 2018 levels of risk, more than half of AIAN children will ever be investigated by a child welfare agency, more than one in five will experience a substantiated maltreatment case, and more than one in five will ever enter foster care. We further find that child welfare agency case processing exacerbates inequality. AIAN children are more likely than white children to enter foster care, conditional on experiencing a substantiated maltreatment case, than are white children. These exceptionally high levels of risk indicate that the crisis of Indian family separation is ongoing. For AIAN children in states like Minnesota, Alaska, South Dakota, North Dakota, and Oklahoma, contact with the child welfare system is a routine part of growing up.

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

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.