Resolution 2018-09: Protection of the Indian Child Welfare Act and Implementing Regulations

WHEREAS, the Indian Child Welfare Act (ICWA) was enacted in 1978 in response to a crisis affecting American Indian and Alaska Native children, families, and tribes. Studies revealed that large numbers of Native children were being separated from their parents, extended families, and communities by state child welfare and private adoption agencies. In fact, research found that 25%–35% of all Native children were being removed; of these, 85% were placed outside of their families and communities—even when fit and willing relatives were available.  Congressional testimony documented the devastating impact this was having upon Native children, families, and tribes. The intent of Congress under ICWA was to “protect the best interests of Indian children and to promote the stability and security of Indian tribes and families” (25 U.S.C. § 1902); and

WHEREAS, we know that ICWA protects our children—it is considered the gold standard of child welfare practice by at least 17 national child welfare organizations, such as the National CASA Association, the National Association of Social Workers, Casey Family Programs, and the Annie E. Casey Foundation. ICWA is critical to protecting the safety of Native children and protecting their rights as tribal citizens in the child welfare system. It works to preserve families and keep Native children connected to their families and communities when they cannot safely return home. These are foundational principles to good social work practice and are embedded throughout many federal child welfare laws; and

WHEREAS, on October 25, 2017, the State of Texas and two foster care parents filed a lawsuit challenging the constitutionality of ICWA in federal district court in the Northern District of Texas. Texas v. Zinke, No. 17-cv-00868 (N. D. Texas, Oct. 25, 2017). In the nearly 40 years since ICWA was passed, no state, until now, has challenged its constitutionality; and

WHEREAS, this Texas case continues an unfortunate new theme in which antitribal advocates are pursuing a strategy that relies on offensive, racially-charged legal arguments to have ICWA declared unconstitutional. These arguments are meant to enflame and are without legal merit, as ICWA is grounded not in a racial classification of Native Americans and Alaska Natives, but in the political relationship between sovereign entities; and

WHEREAS, these individuals and organizations also seek to undermine ICWA by painting a bleak picture of the destruction of a Native child’s life when ICWA is applied in a child custody proceeding, relying on false assumptions about Tribes and our ability to care for our children.  Among other things, these efforts assert that:

  • Tribes are neither interested nor capable of protecting their children;
  • Tribes are not interested in advancing their children’s best interests;
  • Native children’s best interests are served by placing them with non-Native, non-relative families rather than with their families and within their communities, even when there are safe and stable familial or community placements available; and
  • It is in the best interests of Native children to reduce their level of protection to that accorded to all children (rather than raise all children to the level of protection provided to Native children by ICWA).

WHEREAS, the Texas case is not only an assault on ICWA but out of line with best practices and other federal mandates. Texas’s anti-ICWA lawsuit stands in contrast to the progress that we have made together in the past forty years.

NOW THEREFORE BE IT RESOLVED that the Tanana Chiefs Conference Full Board of Directors reaffirms our support of the Indian Child Welfare Act as one of the most powerful statutes passed by Congress to protect Native tribes, families, and children and asks to protect the statute and implementing regulations; and

BE IT FURTHER RESOLVED that the Tanana Chiefs Conference Full Board of Directors supports the National Indian Child Welfare Act in their effective advocacy in support of Native children, families, and tribes through defense and improvements of the ICWA.

Submitted by: Beaver Tribal Council


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