Indian Child Welfare Act faces test before the U.S. Supreme Court

The act, passed in 1978, protects Native children by keeping them connected to their families

October 11, 2022 4:30 am

The Indian Child Welfare Act of 1978 is at stake in a case before the U.S. Supreme Court in early November. (Getty Images)

Today we celebrate Indigenous Peoples Day as a way to honor and reflect upon Native American history and culture. Overwhelmingly approved by Oregon’s Legislature in 2021 and officially recognized in 13 other states, Indigenous Peoples Day is also an opportunity to support efforts that strengthen Indigenous communities.

The Indian Child Welfare Act, passed in 1978, is one of those efforts. It protects Native children by keeping them connected to their families, identities and culture. It also works to reduce the overrepresentation of Native children in the child welfare system and it serves to underscore and affirm tribal nations’ rights to self governance.

Now, the act is under threat. This fall, its constitutionality will be challenged in the U.S. Supreme Court case of Haaland v. Brackeen, with arguments scheduled to begin on Nov. 9.  The well-being of our children, the sovereignty of tribal governments and the promises that have been made to our people is, once again, at stake.

In my work at Red Lodge Transition Services, and as someone who was also cared for by extended family throughout my childhood, I have seen firsthand the benefits of keeping families together. Sadly, I’ve also seen the negative consequences of removing Native children from their families, communities and cultures. I’ve seen that the long-term trajectory of our lives is deeply rooted in the experiences we have as children.

Red Lodge works to assist Native women and men who are ready to transition back into community from prison, jail or other treatment. Successful re-entry depends on meeting complex spiritual, mental, emotional and physical needs. Being connected to one’s family and identity is so important in Native culture and the benefits have been well documented and researched. It’s no surprise to anyone that children who are cared for, loved and supported in their earliest years do better in life. I work with many formerly incarcerated parents who have children, and I can tell you that they love them. Their families and extended families love them. They overwhelmingly want to keep their babies in their lives and raise them in their culture and community.

Support for this 44-year old law has been widespread and bipartisan. A total of 497 tribal nations, 62 Native organizations, 23 states and Washington D.C, 87 congresspeople and 27 child welfare and adoption organizations have signed onto briefs with the U.S. Supreme Court in support of the act, which has often been referred to as the gold standard in child welfare and protection.

In fact, ICWA is viewed so favorably that Oregon passed its own version in 2020, the Oregon Indian Child Welfare Act. Known commonly as ORICWA, that effort came from a desire to more deeply center the interests of Native children in the child welfare system and to reduce the disproportionate removal of Native children from their families.

Those who are working to undermine the act have said that they have children’s best interests in mind, but it is not lost on me that the law firms and lawyers involved in working to dismantle ICWA are also closely tied to fossil fuel interests. To use our children to get to our land is a despicable and heartless act.

If ICWA is overturned by the Supreme Court, the outcome would be a travesty for Native children, their families and tribal communities here and everywhere. With Native peoples comprising just 3.1% of our state’s population today, I am worried that this will result in the further erasure of Indigenous people and our cultures. Our children are more precious than gold or jewels, and we must protect them at all costs!  We cannot allow the legacy of forced assimilation and removal to repeat itself.

For those who wish to truly honor today’s holiday and support Indigenous communities and their children, I ask that you make an effort to further educate yourself on this issue and help Native communities here and everywhere by doing all you can to save our children and to protect tribal sovereignty.

This story was originally published in the Oregon Capital Chronicle. It is republished here with permission.

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Trish Jordan
Trish Jordan

Trish Jordan is executive director in the Portland area of Red Lodge Transition Services, which provides culturally focused programs for women being released from jail, prison or treatment. She is also a citizen of the Muscogee Creek Nation.