The Indian Child Welfare Act in Context: Legislating Native Child Welfare Around the World

While there is widespread existing legislation concerning Indigenous communities, the Indian Child Welfare Act (ICWA) is of particular importance, as it affects how child welfare is regulated within tribal communities and thus the livelihoods of future generations. In the United States and Canada, Native populations continue to deal with many issues, such as forced displacement, inadequate housing, high poverty rates, and lack of access to resources, but an issue that both countries have tried to resolve is that of protecting Indigenous children. Throughout both of the countries’ histories, Indigenous children have been forcibly removed from their homes and separated from their families. But today, they have enacted legislation to not just keep these families together but also keep children in foster care within their tribes or be kept under the care of another Indigenous family. The U.S.’s Indian Child Welfare Act is being challenged by the states of Texas, Indiana, and Louisiana, as well as by non-Native individuals who wanted to adopt Native children but were barred from doing so due to the rules under the act. The Supreme Court decision on the case would affect Native populations across the globe since the Act is recognized internationally and by the United Nations. 

In the United States, the ICWA is a federal law passed in 1978 that gives Native American tribes jurisdiction over children on their reservations to keep them with Native American families. The Act prevents Native American children from being separated from their families, especially their tribes, so children in the foster care system or adoption system remain under the care of a Native American tribe. In the Brackeen v. Haaland case, the Indian Child Welfare Act was challenged and taken to the Supreme Court in November 2022. The states and plaintiffs on the side of Brackeen were non-Native couples who wanted to foster or adopt a Native child but were unable to do so because of the ICWA, so they filed a lawsuit to challenge the act, claiming it was unconstitutional. Those on the side of Haaland are various tribal nations and the U.S. Department of Justice. The Supreme Court decision on Brackeen v. Haaland and the subsequent constitutionality of the ICWA will not be announced until spring 2023. 

The Supreme Court’s decision on the case would not only affect Indigenous communities within the United States but also communities in foreign countries, as they view the ICWA as a model for how they should handle Indigenous child welfare cases or Indigenous rights in general. Native American tribes are against overturning the act and find it necessary to their communities. These tribes bring awareness to how removing the Act would not just disconnect Native children from their culture but attack the sovereignty of tribal nations as a whole. The American Bar Association not only views the Act as a “gold standard” for child welfare policy but also believes that it  “can be seen as a manifestation of the values of international law in children’s rights and the rights of Indigenous peoples.” 

The United State’s neighbor, Canada, has an aboriginal child welfare system made up of various policies among multiple provinces. Instead of a national act like the ICWA, Canada’s child welfare services fall under the jurisdiction of the individual authorities in its provinces and territories. Although this was established under the Indian Act, each province and territory has put in place its legislation regarding how child welfare should be handled. Earlier this year, a lawsuit against Canada was settled which was brought about by First Nation groups to repair their national child welfare system that they claimed was discriminatory against Indigenous tribes. Instead of ensuring that Indigenous families stayed together as ICWA does, it is estimated that 115 thousand children have been separated from their families since 1991. As a $31.5 billion agreement was reached to compensate the children, further steps are being taken to improve the Canadian child welfare system. The British Columbia province just passed the Indigenous Self-Government in Child and Family Services Amendment Act, which allows Native child welfare decisions to be made under the jurisdiction of Indigenous governments. Their new legislation is similar to the ICWA but implemented on a smaller scale instead of nationally. It is a step towards improving the treatment of Indigenous children in their welfare systems but could later be expanded nationally if further efforts are made, especially if the Canadian government uses the ICWA as an example to implement their legislation.

Australia is another case of a country enacting legislation similar to the ICWA as they also have a history of mistreatment towards their Aboriginal population. The Australian Institute of Family Studies even recognizes that the “United States Indian Child Welfare Act currently represents the highest level of transfer of decision-making authority to Indigenous peoples.” Australia has been turning to the ICWA as a model for child welfare legislation and policies they can enact while adjusting it to the needs of their own Indigenous population. 

The Supreme Court’s ruling in the Brackeen v. Haaland case is crucial to the future of the rights of Indigenous peoples in the United States and globally. The Indian Child Welfare Act has not only served as a model to other countries for Native child welfare but should be referenced as one in the future by other nations seeking to handle how Indigenous children are treated within their systems. It is used to keep Indigenous communities together and to prevent their children from falling out of touch with their culture. Countries using the Indian Child Welfare Act allow for the future of Indigenous tribes around the world to be secure and without any harmful intervention. 

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