Right now, that question is being put to the test in one of the most controversial federal court cases this year. Last August, the Fifth Circuit Court of Appeals agreed to rehear oral arguments in Brackeen v. Barnhardt, a case challenging the constitutionality of the federal Indian Child Welfare Act, or ICWA. In 2018, a federal judge in Texas ruled ICWA unconstitutional, in contrast to decades of precedent and deep, bipartisan support for the law.
My own organization, the Child Welfare League of America, is among the hundreds of child welfare groups that heartily supports ICWA for a simple, obvious reason: because it enables state child welfare agencies and courts to act in the best interest of Native American children.
ICWA requires that state courts consider the relationship that Indian children have with their extended family, siblings and community. While the first priority in an effective child welfare system is to limit the separation of children from parents whenever possible and to encourage reunification after a separation has occurred, that is unfortunately not always possible or safe. The next best option is placing children with their extended family.
Experts consider ICWA practices as universal best practice standards in child welfare because ICWA requires that states consider the cultural context of tribal nations and their citizens. According to federal data, American Indian and Alaska Native children have the highest rate of kinship care (also known as living with relatives) among different populations in foster care.
ICWA’s requirements ultimately serve the best interest of children in stability, relational permanency and community connections. Children living with relatives are less likely to be moved multiple times to other caregivers and more likely than those living in non-relative foster care to be successfully reunified with their parents, among other beneficial outcomes. ICWA’s placement preferences, requiring that children live with extended family if possible, promotes this outcome.
The welfare of our children is too important for us to risk dismantling a system widely acknowledged to be best for children. Placing value on familial and community ties makes a difference in the well-being of children. My firsthand experience advocating for children, and supporting child welfare agencies in developing and implementing best practices and policies for child welfare decision-making, tells me that the U.S. District Court’s conception of the best interest served by ICWA was far too narrow.
What is it that we as a nation, a society, as communities and families, need to do to keep children safe, healthy, and able to reach their full potential? Systems can only work to the extent that the community supports them. Because evidence shows that ICWA’s framework achieves better outcomes for children, it should be no surprise that Congress increasingly has encouraged state child welfare frameworks to look more like ICWA to the benefit of all children. The system should reflect the community and it should reflect ICWA, the “gold standard” in child welfare. If anything, we should do more to support ICWA and use it as an example for improving other child welfare laws.
ICWA’s placement preferences work. They help to keep children connected to family, community and culture. Let’s not destroy a legal success story that has helped the lives of countless children and families, and should continue to do so for decades to come.
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Christine James-Brown is the CEO of the Child Welfare League of America.
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