The US Government has a long and deeply harmful legacy of removing American Indian and Alaska Native children from their families. This practice, initially devised as a settler colonial strategy to eliminate Native nations through forced assimilation, continues to this day through state child welfare systems.
Native nations, however, have consistently resisted these attacks by exercising tribal sovereignty to shield their children and families from exposure to a long line of US institutions that separate families. In the 1970s, for example, tribes testified before the US Congress and offered compelling evidence that Native children were being unnecessarily removed from their families and communities. Collective efforts to end this vicious practice led to the passage of the Indian Child Welfare Act of 1978 (ICWA), which codifies in law the rights of tribal sovereigns to exercise jurisdiction in all cases involving the custody of Native children. ICWA provides an important lesson in how the unequal exposure of Native children and youth to family separation through foster care can be drawn down by leveraging tribal expertise and empirical analysis to implement minimum federal requirements for child custody proceedings.
we evaluate how the separation of Native children from their families could be reduced through policies that enhance the relative authority and capacity of tribal governments relative to settler colonial U.S. government agencies
In our mixed-methods project “Tribes and Families: Fulfilling the Dual-Promise of Indian Child Welfare Reform,” we argue that much more can be done to protect Native families. One key reason is that despite ICWA’s existing protections, we find that states continue to take Native children into foster care at rates dramatically higher than the rates at which they take White children. In response, we evaluate how the separation of Native children from their families could be reduced through policies that enhance the relative authority and capacity of tribal governments relative to settler colonial U.S. government agencies. Expansions of the rights of tribal sovereigns in U.S. legal systems and their organizational and institutional capacities prioritize the best interests of Native families, and in response, can serve as effective levers for reducing rates of Native family separation in U.S. child welfare systems.
A long and ongoing history of undermining sovereignty through separating families
One component of our project explores how direct efforts to undermine the sovereignty and resources of Native nations led to the spread and institutionalization of child removal in particular parts of the U.S. Using archival data from 1880 through 1920 and following the lead of the Department of the Interior under the leadership of Secretary Deb Haaland, we are developing a publicly available dataset on the scale of operations of the notorious federal Indian Boarding School program across time and place. We carefully map how the construction of settler colonial U.S. social policy regarding family separation bolstered efforts to undermine the power and capacities of tribal nations. In so doing, we illustrate that the U.S. government’s political and demographic project of taking Native lands and building a White settler nation were directly related to the locations and scale of efforts to separate Native children from their families.
Put simply, the U.S. government has historically concentrated its genocidal efforts to remove and forcibly assimilate children in places where it was actively seeking to weaken and eliminate tribal sovereigns. These policy choices have durable impacts on Native children and youth today. Disrespect for tribal sovereignty is at the heart of historical and contemporary U.S. child and family policy toward Native peoples.
Practicing sovereignty, protecting Native children and families
A second component of our project uses focus group data and semi-structured interviews to explore how practitioners and leaders working with Native children and youth exercise tribal sovereignty in the child welfare space. The framework provided by ICWA points to a clear route forward, enshrining the legal right of tribal governments to exercise jurisdiction over custody cases involving children and youth. But in our focus groups with child welfare practitioners, we have found that two sets of problems routinely interfere with efforts to keep Native kids in their communities and with their families:
- Compliance varies across jurisdictions. While many states have directed substantial efforts at complying with ICWA (often expanding beyond the protections of the federal law), some still fail to fully implement the law. Judges and child welfare agencies often fail to consider whether a child is entitled to ICWA protections and may fail to notify tribal governments about proceedings involving a Native child. Our findings strongly suggest that a more robust system for evaluating eligibility for ICWA protections and creating systems to monitor and ensure compliance with the law would reduce the numbers of Native children and youth in non-tribal child welfare systems. For example, focus group participants shared the importance of educating their local District Attorneys on ICWA. This partnership ensures that parental rights are not terminated without first exploring alternatives with the tribe. If these options are not viable, DAs will only pursue termination after substantive communication and agreement with the tribe. Such a system, involving already-existing data systems, has been proposed and endorsed by key leaders working in Indian Child Welfare.
- Our participants routinely point to the burdens associated with participating fully in non-tribal family court proceedings, a pre-requisite to exercising jurisdiction over a case. Non-tribal family courts too often disregard the timelines and difficulties of full tribal participation in proceedings, and advance cases according to their own needs and schedules. For many tribal governments, family services are stretched thin due to resource and staffing constraints. Courts want tribes to meet them on their terms, but this logic should be inverted. Our participants suggest a number of ways child welfare agencies can center and facilitate the participation and collaboration of tribal governments in ICWA proceedings. One organizational example is increasing the training and compensation of child welfare staff in line with state minimum wage increases. Respondents share that recruitment is difficult, not only because the work can be emotionally heavy but also because entry-level service jobs with high flexibility often pay the same wages. Another example involves funding Native foster homes on and off-reservations. Our respondents share that a shortage of such homes is a key driver of removal proceedings and can be avoided with a strong state-tribal partnership.
Reducing inequalities in the separation of Native children from their families and communities requires shifting power away from federal, state, and local agencies, and reaffirming the sovereign right of Native nations to care for their children
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When the rights and sovereignty of tribal governments are respected by U.S. government agencies, Native children and youth are removed from their families and placed in non-Native foster care settings far less frequently. Our research clearly shows that settler colonial efforts to weaken and constrain tribal sovereignty harms Native children and youth. Likewise, reducing inequalities in the separation of Native children from their families and communities requires shifting power away from federal, state, and local agencies, and reaffirming the sovereign right of Native nations to care for their children.
