The US must confront its failures of Native children in foster care

The United States Supreme Court agreed last week to hear a challenge to the Indian Child Welfare Act, a law that has protected American Indian and Alaska Native children, their families and their communities for nearly 50 years. In the interests of vulnerable children — and in light of the cruel history that this law was written to redress — it is vital that the Indian Child Welfare Act be protected and strengthened, not taken apart.

The law, commonly known as ICWA, was passed in the 1970s to prevent the separation of Native children and families, which has been a plague on this continent for centuries. It was a long-overdue reckoning with this country’s grim history of taking children from their homes and sequestering them in boarding schools in a brutal attempt to raise them as white people.

ICWA has long been considered the gold standard for child welfare, with good reason. It aligns with what is increasingly recognized as best practice in all situations: Whenever possible, keep children with family members if they cannot stay with their parents. The law has rightly been hailed by national child welfare experts as a high-water mark of sensible governance, prioritizing the best interests of children, and restoring stability to families and communities in Indian Country. Nonetheless, it has faced ongoing assault from right-wing forces that argue the law is racially biased against non-Native families seeking to adopt Native children and likely see it as a threat to the enduring legacy of colonization.

The effect of undoing ICWA would be catastrophic. The era of genocidal warfare and forced displacement of Native peoples to reservations and boarding schools may have ended, but the disruption of Native communities continues today. Now it’s done bureaucratically, through agency procedures, court hearings and paperwork in modern-day child welfare systems.

This truth is painfully reflected in the disproportionately large number of American Indian and Alaska Native children in the state foster care systems. While one percent of children in the U.S. are American Indian and Alaska Native, they make up two percent of the children in foster care, and eight percent of the children in families where one or both parents are not present.

The Indian Child Welfare Act exists to support loving family arrangements formed out of trauma and separation — and it has benefited untold numbers of Indian families and what I call “grandfamilies.” It helped Sonya Begay, of Frederick, Md., a citizen of the Navajo Nation, to gain permanent custody of her three grandchildren, who had been removed to foster care because of their parents’ struggle with drug and alcohol use. 

Let us put it in perspective. Begay had to fight a child welfare agency that had placed the children with non-relatives in a foster home where separated from their culture and from everything they knew, they experienced abuse. But the law was on her side. Because of ICWA, the children were returned to their loving grandma. Her grandchildren have thrived. 

Historic inequities are reflected in the poverty rate: About 24 percent of American Indian and Alaska Native children live in areas of highly concentrated poverty, compared with the national average of 11 percent. Children of color are more likely to live in grandfamilies. Black, American Indian and Alaska Native children are more likely to live in grandfamilies than any other racial or ethnic group.

One national study found that in cases where families shared similar circumstances and where abuse has been reported, American Indian and Alaska Native children are two times more likely than white children to be investigated, two times more likely to have allegations of abuse or neglect substantiated, and four times more likely to be placed in foster care.

What can be done? We can look to Canada, which continues modeling the critical role of acknowledging past injustices, changing discriminatory policy and making reparations. In January, the Canadian government announced a $31.5 billion settlement with First Nations children and families harmed by the country’s child welfare system. The reparations agreement is the largest ever in Canada, which has a long, cruel history of needlessly separating First Nations children from their homes and cultures. 

“Historic injustices require historic reparations,” a Canadian official said when her country’s deal on reparations was announced. Her words struck the right note for a country that has decided to move forward while acknowledging a painful past. The U.S. has much to learn from that example. 

Donna Butts is executive director of Generations United, a nonprofit that advocates for public policies and programs that benefit all generations.