What is Native American child welfare?

Sovereignty, Spirit, and Survival: Navigating Native American Child Welfare

Imagine a child, no older than five, suddenly removed from their home, their family, their community. For countless children, this is the reality of child welfare systems worldwide. But for Native American children, this journey often carries an additional, profound weight: the severing of ties to an ancestral heritage, a tribal identity, and a spiritual connection that defines who they are. The landscape of Native American child welfare is not merely a subset of the broader system; it is a complex tapestry woven with threads of historical trauma, cultural resilience, inherent sovereignty, and a fierce determination to protect future generations.

At its heart, Native American child welfare seeks to answer a fundamental question: what truly constitutes the "best interest" of a Native child? For Indigenous communities, this concept extends far beyond physical safety and basic needs. It encompasses the preservation of language, traditions, kinship ties, and the spiritual well-being that comes from belonging to a vibrant, enduring culture. Yet, for centuries, external forces have systematically undermined these very foundations.

A Legacy of Erasure: The Historical Roots of Disruption

To understand the current state of Native American child welfare, one must confront a painful history. From the forced removal and relocation of tribes in the 19th century to the devastating era of Indian boarding schools, federal policies aimed explicitly at assimilation sought to "kill the Indian to save the man." Children were forcibly taken from their families, their hair cut, their languages forbidden, their spiritual practices suppressed. The stated goal was to integrate them into white society, but the devastating consequence was intergenerational trauma, a profound loss of cultural identity, and the erosion of traditional family structures.

Even after the boarding school era began to wane in the mid-20th century, the pattern of removing Native children persisted. State child welfare agencies, often misunderstanding or devaluing Indigenous cultural norms—such as extended family networks or communal child-rearing—frequently deemed Native homes "unfit" by Western standards. "There was a systemic bias," explains Sarah Deer (Muscogee (Creek) Nation), a leading scholar on Native American law. "What was seen as neglect in one cultural context was simply a different way of living in another. And the result was devastating: Native children were being removed at alarming rates and placed overwhelmingly into non-Native homes, often far from their communities."

By the 1970s, an estimated 25-35% of Native American children were being removed from their families, with 85% of those placed in non-Native foster or adoptive homes. Some states reported removal rates as high as 75-80% for Native children. This crisis, a direct continuation of assimilation policies, threatened the very survival of tribal nations.

The Indian Child Welfare Act (ICWA): A Landmark of Protection

In response to this crisis, and after extensive hearings that revealed the devastating impact of these removals, the U.S. Congress passed the Indian Child Welfare Act (ICWA) in 1978. ICWA is widely considered the "gold standard" in child welfare law, recognizing the unique political status of tribal nations and the critical importance of cultural preservation for Native children.

The core tenets of ICWA are revolutionary:

1. Jurisdiction: It prioritizes tribal court jurisdiction over child welfare cases involving Native children, recognizing tribal nations’ inherent right to govern their own citizens. If a state court initiates a child welfare proceeding involving a Native child, it must notify the child’s tribe, which then has the right to intervene or transfer the case to tribal court.



2. Active Efforts: Unlike the "reasonable efforts" standard in other child welfare cases, ICWA mandates "active efforts" to prevent the breakup of Native families. This means providing culturally appropriate services, working directly with the tribe, and exhaustively exploring all options to keep the family together before considering removal.
3. Placement Preferences: If a Native child must be removed from their home, ICWA establishes a hierarchy of placement preferences:
   • First, with a member of the child’s extended family.
   • Second, with a member of the child’s tribe.
   • Third, with another Native American family.
   • Fourth, with a non-Native family, but only if no other options are available and after documenting "good cause" for deviating from the preferences.

The purpose of ICWA is clear: to keep Native children connected to their families, their tribes, and their cultural heritage, understanding that this connection is fundamental to their identity and well-being. As former Assistant Secretary for Indian Affairs Tara Sweeney (Native Village of Barrow) once stated, "ICWA is about protecting our most sacred resource: our children. It’s about ensuring that they grow up knowing who they are and where they come from."

Challenges to ICWA: A Constant Battle for Sovereignty

Despite its vital protections, ICWA has faced persistent challenges. State agencies sometimes fail to comply, either due to lack of training, misunderstanding of the law, or systemic bias. More significantly, ICWA has been the target of numerous legal challenges, often initiated by non-Native prospective adoptive parents or conservative groups arguing that it is "race-based" or unconstitutional.

The most prominent recent challenge came in the form of Brackeen v. Haaland, a case that reached the U.S. Supreme Court. Opponents argued that ICWA violated the Equal Protection Clause by giving preferential treatment based on race. However, tribal nations, the federal government, and child welfare advocates argued strenuously that ICWA is not based on race but on political status, recognizing the unique government-to-government relationship between the U.S. and tribal nations. Tribal citizens are citizens of sovereign nations, not merely a racial group.

In June 2023, the Supreme Court delivered a resounding victory for tribal sovereignty and Native children, upholding ICWA by a 7-2 vote. The ruling affirmed that Congress acted within its authority in passing ICWA and rejected the constitutional challenges. This decision was a massive relief for tribal nations, validating decades of legal precedent and protecting the integrity of tribal families. However, advocates remain vigilant, understanding that attacks on tribal sovereignty, and by extension, ICWA, are likely to continue in other forms.

Tribal Sovereignty in Action: Building Indigenous Child Welfare Systems

While ICWA provides a critical legal framework, the true strength of Native American child welfare lies in the self-determination of tribal nations themselves. Many tribes are building and strengthening their own child welfare departments, tribal courts, and culturally specific programs that offer a holistic approach to family well-being.

These tribal programs often differ significantly from state systems. They prioritize:

• Extended Family and Kinship Care: Recognizing the strength of the "tiyospaye" (Lakota for extended family) or similar kinship structures, tribal programs actively seek out relatives, sometimes dozens of them, before considering foster care. This ensures children remain connected to their bloodlines and cultural teachers.
• Cultural Healing: Programs incorporate traditional ceremonies, language immersion, storytelling, and connection to the land as vital components of healing for children and families. This approach addresses the intergenerational trauma that often underlies family struggles.
• Community-Based Solutions: Tribal child welfare is often deeply integrated into the community, utilizing elders, traditional healers, and community members as resources for prevention, intervention, and support.
• Prevention and Early Intervention: Many tribal programs focus heavily on preventing removals in the first place, offering parenting support, substance abuse treatment that incorporates traditional healing, and culturally relevant mental health services.

"When our children are with us, they are whole," states a representative from the Standing Rock Sioux Tribe’s child welfare department. "They learn their language, their ceremonies, their place in the universe. That’s something no state system can ever provide."

The Path Forward: Sustaining Hope and Healing

Despite the advancements brought by ICWA and the resilience of tribal nations, significant challenges persist. Native children are still disproportionately represented in state foster care systems, often due to lingering biases, poverty, substance abuse issues exacerbated by historical trauma, and a lack of adequate resources for tribal programs. Funding for tribal child welfare services often pales in comparison to state and federal allocations for non-Native systems.

Moving forward, the focus must be on:

1. Strengthening ICWA Compliance: Ensuring state agencies fully understand and adhere to ICWA’s provisions, including robust "active efforts" and diligent placement preferences.
2. Increased Funding for Tribal Programs: Investing significantly more federal resources directly into tribal child welfare departments, allowing them to expand culturally relevant services and build capacity.
3. Cultural Competency Training: Mandating comprehensive training for all state child welfare professionals on Native American history, culture, and tribal sovereignty.
4. Addressing Root Causes: Tackling the underlying issues of poverty, historical trauma, and inadequate access to healthcare and education that contribute to family instability in Native communities.
5. Elevating Native Voices: Centering the perspectives and expertise of tribal leaders, families, and child welfare professionals in policy discussions and program development.

Native American child welfare is more than just a legal framework; it is a profound testament to the enduring spirit of Indigenous peoples. It is about recognizing that a child’s well-being is inextricably linked to their identity, their community, and their connection to generations past and future. By honoring tribal sovereignty and supporting culturally grounded approaches, society can help ensure that Native children not only survive but thrive, carrying forward the rich heritage that is their birthright. For these children, protecting their future means reconnecting them to their past, ensuring that their spirit, their culture, and their inherent belonging remain unbroken.