The Indian Child Welfare Act: What It Means to Protect Tribal Sovereignty

Aug 24, 2023

"Throughout Indian Territory, there are records of Indian agents being paid a bounty for rounding up kids to ship to the government boarding schools. Later, in a pretense of choice, parents had to sign papers to let their children go 'legally.' Parents who refused to sign could go to jail…. Children, language, lands: almost everything was stripped away, stolen when you weren't looking because you were trying to stay alive." Robin Wall Kimmerer - Braiding Sweetgrass

From the 1770s through the late 1800s, the United States entered treaties with Tribal Nations across the United States. These treaties proscribed the behavior between the parties, provided payment for land, and frequently included the provision, "the United States bind themselves to protect the aforesaid Indian nations against the commission of all depredations by the people of the United States..." These provisions in the Blackfoot Treaty of 1855 and the Fort Laramie Treaty of 1851 can be found in Article VII and Article III, respectively. 

Despite this provision, the United States government began to fund the round-up of Indigenous children from reservations and place them into boarding schools or forcibly adopt them out to white families. Over the next 150 years, the United States government committed the most significant attack on sovereignty and decimation of Indian culture by removing generations of Indian children. Sentiments of the time are captured in a statement by Captain Richard Henry Pratt of the United States Army and founder of the Carlisle Residential School saying, "Kill the Indian, save the man."

 In 1974, Congress started hearings and recorded testimony about the removal of Indian children from their homes. These removals were often unwarranted and driven by the States' welfare system. These hearings lasted over four years and found that approximately 35% of Indian children were removed from their homes. Of that 35%, 85% were placed in homes outside their Tribes despite having eligible relatives requesting custody of children who were removed.

 During the 2023 Montana Legislative Session, Representative Jonathan Windy Boy proposed HB 317, also known as the Montana Indian Child Welfare Act (MICWA). At the same time, the United States Supreme Court heard challenges to the Federal Indian Child Welfare Act (ICWA) in Brackeen v. Haaland. The Constitutional challenges in Brackeen v. Haaland cited exceeding Congress's authority, Equal Protections under the 14th Amendment, and Anti-Commandeering under the 10th Amendment. In June 2023, the United States. Supreme Court upheld ICWA, citing the Indian Commerce Clause. Both the majority and the dissenting opinions held that ICWA does not legally originate out of Treaty rights. Protecting a Tribal Nation's sovereignty, however, does. 

People often fail to acknowledge that while Indian children are United States citizens, they are also citizens of sovereign Tribal Nations. Like other dual citizens, when a child is removed involuntarily, the nation to which the child belongs has significant authority in the child's placement. 

Tribal Nations are political sovereigns with laws and traditions developed since time immemorial. These laws and traditions apply to child welfare and should be protected under the same Treaty rights that protect their sovereignty. For example, before the Potawatomi Tribe was colonized, it was customary to view the child as the adopter of the new parent rather than the American system, which considers the child as the adoptee. Potawatomi citizens recognize the discretion of a child to make their own choice upon reaching a certain age. Wisconsin Potowatomies of Hannahville Indian Community v. Houston, 393 F. Supp. 719, 726 In the Ojibwe Tribes, adoption and fostering were also quite common, and the child was usually adopted by a grandparent or relative. While these ancient laws were not written and codified, they were memorialized and passed down in most Tribes' oral histories. These oral laws were determinative of consequences and outcomes concerning the Tribe as a society among its individuals. Today, Tribal Nations have adopted government and court structures that resemble the United States system. Still, the specific laws that determine things such as citizenship or child welfare come from laws that have originated since time immemorial.

As Congress summarized in the Congressional hearings that led to the passage of ICWA in 1978, and as quoted by Justice Gorsuch of the Supreme Court of the United States in the Brackeen majority opinion, "There is no resource that is more vital to the continued existence and integrity of Indian Tribes than their children." 

Removing generations of children in attempts to erase any trace of Tribal identity undeniably constitutes "depredations by the people of the United States." Though Congress did not cite Treaty rights as the power with which they passed ICWA, and the United States Supreme Court held in Brackeen, ICWA originates in the Indian Commerce Clause and other plenary powers as cited by Congress. In the wake of the challenges to ICWA, Treaty rights should be revisited and honored.

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