Jeopardizing the Indian Child Welfare Act puts tribal communities and sovereignty at risk, says NAHM speaker

by Mary Gallagher
Office of University Communications

The Indian Child Welfare Act, the federal law requiring state agencies go to great lengths to keep Indigenous children with their families or Native communities if they’re removed from their parents, is central to tribes’ community wellness – and their sovereignty, said Natasha Singh, an attorney specializing in tribal self-governance.  

Singh (Dinyee Hu’tanna) is vice president of Legal Affairs for the Alaska Native Tribal Health Consortium. She spoke at Western via Zoom Tuesday during Native American Heritage Month about the importance Indian Child Welfare Act, known as, ICWA, and how a case before the U.S. Supreme Court puts the law’s future in jeopardy.   

Congress passed ICWA in 1978 to address the devastating and common practice of taking Native children from their homes and placing them in foster or adoptive families, cutting them off from their Native communities.  

“We had this huge amount of Native children being adopted by non-Native families,” Singh said. “Tribes’ greatest resources, their children, were being taken by the courts and state welfare agencies, and there was nothing that tribes could do about it.” 

Today, when Native children are removed from their homes, ICWA requires they go to extended family members if possible. If not, unrelated citizens of the child’s tribe must be considered, then members of other tribes. And throughout the process, the state must make an “active effort” to reunify the family. 

Tribes must also be notified right away when a juvenile member is removed from their home, Singh said. Today, tribal social workers are often involved in the investigation into whether the child should be removed at all. 

“Because the tribe is notified, we can easily get the family involved,” Singh said. “The tribe knows of all the potential people that could be this child’s support system while the state, because of ICWA, will have an ‘active effort’ to unify the child with their parents.” 

Research shows that even in difficult circumstances at home, children are better off with their biological parents, she said. 

Years before she worked with the consortium that provides health services to 229 tribes in Alaska, Singh specialized in ICWA cases. She saw communities enact cascades of positive changes centered around protecting children, from education and tribal courts to substance abuse treatment and behavioral health programs to help parents recover from addiction and heal from generational trauma.  

“If we have tribal governments start prioritizing child protection, it starts moving everything. It pulls the community together,” she said. “ICWA has proven to be, in Alaska, such an important tool of self-governance for our people.” 

But Singh and other advocates of ICWA fear that a case now under consideration by the U.S. Supreme Court, Brackeen v. Haaland, might put an end to these protections. The Brackeens allege ICWA unfairly disqualified them from adopting their son’s biological sister because the children are tribal members and the Brackeens are non-Native.  

The case, argued before the high court on Nov. 7, asks the question of whether Congress even had the authority to pass ICWA, and whether the law violates the Constitution’s Equal Protection Clause because it sets out different standards for Indigenous children in child protection cases.  

But attorneys representing tribes argued that ICWA’s provisions aren’t based on race, but on political affiliation; ICWA applies to Native children because they are members of tribal nations, not because of their race, Singh said. She was relieved to hear justices asking questions about this concept during oral arguments.  

And the framework of federal Indian law, including Congressional authority to pass laws related to the U.S. government’s dealings with tribal nations, dates back to the 1820s and 1830s with the “Marshall Trilogy” of cases affirming the sovereignty and self-governance rights of Native Americans.  

But Singh worries these are just the rights at stake in Brackeen v. Haaland.  

“The attack on ICWA is not about child protection,” she said. “These conservative think tanks that developed the attack on ICWA – it isn’t about the heartbreak of the foster and adoptive parents. This is about the rights that tribal nations have in this country. We are nations within the most powerful nation on the planet, which makes us powerful. They’re trying to take away that power.” 

Singh hopes the court will let ICWA stand. If the court strikes down a portion of ICWA, “we can go to Congress and say ICWA needs some work anyway, and we would provide the language that would overcome these constitutional challenges.”   

She noted that Alaska tribes had some legislative successes in 2022, from strengthening protections for Alaska Native women in the Violence Against Women Act to receiving $2 billion from the federal government for water and sanitation projects in Alaska Native villages.  

But completely nullifying ICWA could jeopardize other key self-governing rights, too, and that’s what makes Singh very nervous. 

“I think what gives me assurance is that we’ve been through, literally, hell,” she said. “But we’re still here protecting our children, protecting our women, still developing our programs and will continue regardless of whether the federal government or the state government want to help us or not.” 

Friday, December 2, 2022 - 9:40am