Alliance Webinar on Indigenous Sovereignty and the Indian Child Welfare Act

The Webinar Readout

Adopted in 1978, the Indian Child Welfare Act (ICWA) is considered by many to be the “gold standard” in child welfare. ICWA is a federal law that seeks to keep Native American children with Native American families, enacted in response to large numbers of Native children being separated from their parents, extended families, and communities by state child welfare and private adoption agencies. ICWA is currently under threat due to a Supreme Court case, Haaland v. Brackeen, which challenges the constitutionality of the law. Losing the protections of ICWA would threaten the health and wellbeing of Native children and the sovereignty of Tribal nations.  

As the Alliance for Early Success works to deepen our knowledge about Native American sovereignty, culture, and advocacy, we kicked off our efforts with a deep dive into ICWA and state efforts to codify its protections now that the federal law is under threat. Not only is the issue timely due to a pending decision in Haaland v. Brackeen, but ICWA is also an entryway into discussing Tribal sovereignty, learning more about historical and current brutalities perpetuated against Native communities, families, and young children, and celebrating Native resiliency and advocacy.

We learned from Native American and ICWA leaders about the sacred importance of children and families in Native cultures; the nuts and bolts of ICWA, the reasons behind it, and what’s at stake if it’s overturned; and state-based efforts to ensure that the protections of the law are maintained regardless of what happens at the federal level. 

Speakers included:

• • Olga Gonzalez, Executive Director, Cultivando, and a member of the Yaqui and Otomi nations
  • Jack Trope, Senior Director, Indian Child Welfare Program, Casey Family Programs
  • Larissa Littlewolf, Associate Director, Tribal Training and Certification Partnership, University of Minnesota Duluth, and an enrolled member of the Leech Lake Band of Ojibwe
  • Dawn Gray, Managing Attorney, Blackfeet Nation, and a Blackfeet tribal member

After a welcome and framing from Jacy Montoya Price of the Alliance for Early Success, Olga Gonzalez led us in an opening that honored Native land, the earth, and Native culture and wisdom, and acknowledged both the trauma and joy in Native culture. She acknowledged that we all share a historical wound from White supremacy and colonization, and by acknowledging the injustices that have been perpetrated against Native people, we begin to heal. By taking action to address the systemic issues, we begin to demonstrate our commitment to righting the wrongs of the past.

Gonzalez grounded us in some Native history and culture that has impacted her own family history and experience:

• • Columbus’ exploitative expedition to Hispaniola and the story of Chief Hatuey, who resisted colonization.
  • The story of “La Llorona,” the weeping woman, who represented indigenous women doing whatever was necessary to protect their children.
  • Yaqui people in both the US and Mexico taken by soldiers to be enslaved and forced to work in gold and silver mines and on plantations.
  • Boarding schools in both the U.S. and Canada where Native children were removed from their families and tribes and forcibly assimilated.
  • Oil companies supporting the elimination of ICWA as part of an effort to strip indigenous sovereignty more broadly.

Gonzalez shared that Native cultural values include the sacredness of children, the importance of surrounding children with elders and family, and the necessity of preserving language, traditions, and ceremonies, all of which supports children’s self-esteem and identity formation and ensures their survival. The hope lies in acting together, and there is urgency to act now—to heal the seven generations before us and the seven generations who come after us.

Jack Trope then shared the nuts and bolts of ICWA.

• • Before ICWA, 90 percent of Native children removed from their homes were placed in non-Native homes, which was the impetus for the law.
  • ICWA is considered the gold standard in child welfare law and practice because it includes active efforts to keep children with their families (a higher standard than “reasonable efforts”) and, if removal is necessary, placement preferences that keep them connected in the long term to their relatives or other homes that are part of their culture and community. These principles are supported in child well-being research, and every child would benefit from a child welfare system built on these principles.
  • ICWA also allows for Native child-welfare cases to be transferred from state court to tribal court (when parents agree), which can ensure that appropriate tribal standards like connection with family, culture, and community are applied to the case.
  • Through these principles, ICWA supports Native values that children belong with their families whenever possible, that even distant kin are held closely, and that maintaining a life-long connection to Tribal identity is critical for Native people’s well-being.

Trope also covered the implications of Haaland v. Brackeen:

• • This Supreme Court case challenges the constitutionality of ICWA.
  • Amicus briefs filed on the case were overwhelmingly in support of ICWA, on behalf of 502 of the 574 federally recognized tribes, as well 23 blue and red states, 87 members of Congress, and 62 Native American organizations, as well as many other groups, such as pediatricians and psychologists.
  • Potential outcomes of the case include the court completely upholding ICWA, upholding some parts and invalidating other parts, or totally invalidating the law.
  • Depending on the results of the case, Congressional and/or state-level responses are likely to be possible to continue the protections of ICWA. States are gearing up for this already, with 11 states having already enacted comprehensive Native American child-welfare laws, and three other states actively considering legislative proposals.

Larissa Littlewolf and Dawn Grey talked with the Alliance’s Mandy Ableidinger about what is happening in states to enshrine the protections of ICWA in state law—specifically in Minnesota, where a comprehensive ICWA state law has been in place for nearly two decades, and in Montana, where a state ICWA law is currently moving through the legislative process.

Grey shared that in Montana:

• • The network of tribes is important. They stay connected and understand each other’s processes and protocols, which helps them respond quickly when a Native child is removed from their home.
  • The Tribal ICWA court system is also key for keeping everyone looped in and working together.
  • Having the state of Montana required to make “active efforts” (through ICWA) is critical for keeping children in their families and with their Tribes.
  • There is overwhelming support for the proposed ICWA state law that is currently moving forward in Montana. The legislation reflects Native values about children, avoids the paternalistic approach that has characterized most state and federal interactions with the Tribes, and removes any misconception about how Native American child welfare law is to be implemented.

Littlewolf shared that in Minnesota:

• • The Minnesota Indian Family Preservation Act (MIFPA) was first enacted in 1985 to enhance federal ICWA standards.
  • Tribes are taking the lead on protecting Native children, and over time, they have added more protections.
  • Recently, the Tribes have created a workgroup that is taking a proactive approach to ensure that MIFPA is standalone and not dependent on ICWA, in case the Supreme Court invalidates ICWA.
  • The Tribal Training and Certification Partnership was developed in 2020 to ensure that county- and state-child welfare leaders were being trained in the what, the why, and the how of ICWA and MIFPA by Indigenous specialists. The goal is to build practitioners’ foundational knowledge and thereby ensure accurate implementation of the laws.

Both Grey and Littlewolf set the record straight on some misconceptions around ICWA and the related state laws:

• • There is a lot of explicit and implicit bias in people’s understanding of why Indigenous children are disproportionately represented in out of home placements. The vast majority of removals are for neglect, and there are different standards applied to Indigenous and White families.
  • Paternalism stops people from abiding by the principles in ICWA, which is why it is so important that the laws are there. That bias means that Native practitioners and leaders must continuously educate and remind non-Indigenous people of the legal requirements.
  • The state doesn’t know best for Tribal nations. Tribes are more invested in the children of their community than any other system could ever be because they are the future for the Tribes and their greatest investment.

The full panel came back together to share advice on how child advocates and state leaders can get involved in ICWA advocacy in their states.

• • Get to know the Tribes in your state. Who can you work with? Don’t rely on the Tribes to educate you; educate yourself.
  • Then start having conversations. Talk with the Tribes in your state. Keeping talking and it can lead to partnership and action.
  • Defer to the leadership of the Tribes in all things that impact Native children and families. Don’t be part of a group making decisions about Native people without Native people at the table.
  • If Tribes in your state are working on something like a state ICWA law, you can support that. Some legislators will understand it and others will be stuck in their bias. You can help with those legislators who don’t get it.
  • Support training in your state around ICWA, state Indigenous child welfare laws, and Tribal codes.

Child and family issues are interconnected, and the panel shared some other issues that are central to Native well-being, including:

• • Meeting basic needs of water, electricity, safe housing and transportation
  • Mental health
  • Substance use disorder
  • Building Tribal capacity and the capacity of urban Native American programs
  • Environmental justice
  • Accurate data on Native children and families
  • Tribal sovereignty

Shared and Additional ICWA Resources

• • About ICWA, from the National Indian Child Welfare Association
  • How can child welfare systems apply the principles of the Indian Child Welfare Act as the “gold standard” for all children?, from Casey Family Programs
  • Learn more about Haaland v Brackeen.
  • For a deep dive into the background behind Haaland v Brackeen, listen to This Land and learn how a string of custody battles over Native children became a federal lawsuit that threatens everything from tribal sovereignty to civil rights.
  • HB 317: Provide for the Montana Indian Child Welfare Act
  • SF 667: Minnesota Indian Family Preservation Act modifications
  • What you need to know about the Indian Child Welfare Act and the Minnesota Indian Family Preservation Act
  • Learn more about Cultivando.
  • Learn more about Casey Family Programs.
  • Learn more about Minnesota’s Tribal Training and Certification Partnership (TTCP)
  • Find out which indigenous nation’s land you are living on.