Full compliance with Indian Child Welfare Act, not its dismantling, is needed

BY TERRY CROSS Published: July 20, 2012
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As a member of the Seneca Nation and having worked in the field of Indian child welfare for over 30 years, I'm familiar with the history behind the Indian Child Welfare Act of 1978 (ICWA). Today, ICWA has been increasingly in the media spotlight. Most recently, The Oklahoman cited its application in South Carolina's Baby Veronica custody case, characterizing it as creating “roadblocks” between Indian children and loving homes, and focused on an antiquated notion of race. I disagree.

The Indian Child Welfare Act is based upon the unique political status of American Indians, not upon race. This distinction is necessary to emphasize because much of today's dialogue falls prey to the trappings of racial debate, when in fact the law is rooted in Indian tribes' sovereign status, upheld and reaffirmed by more than 200 years of federal Indian law and the U.S. Supreme Court.

Second, the law doesn't place the rights of a tribe or concepts of cultural identity above the rights of a child. Rather, it's intended to balance the rights of Indian children, Indian parents and Indian tribes.

The ICWA ensures that nobody — birth parents, foster parents or adoptive parents alike — may infringe on a child's right to access the benefits of being a tribal citizen, including tribal services, participation in voting in tribal matters, holding public office, owning property, inheritance of tribal customary rights, participation in tribal ceremonies and cultural activities, and living with the secure notion of belonging.

My organization works with many adult adoptees of the pre-ICWA era whose harrowing stories illustrate why such safeguards were created in 1978, and why they're still needed today. The law protects Indian parents from having their children removed for baseless reasons, as was the case for generations of Indian children forcibly taken from loving families. It sets criteria that states are required to follow when they take Indian children into custody, to ensure any placement or adoption is done legally and ethically.