Supreme Court Rules on ICWA


On Tuesday, June 25, 2013, the United States Supreme Court issued a ruling that many advocates strikes a blow against the very court of the Indian Child Welfare Act.

In a 5-4 ruling drafted by Justice Samuel Alito, the court ruled that under the provisions of the Indian Child Welfare Act that a child, widely known as Baby Veronica, does not have to live with her biological Cherokee father.

Writing in an Indian Country article, Rob Capriccioso explains: “The child was taken from her adoptive white parents’ home after living there for the first two years of her life. Dusten Brown, a Cherokee Nation citizen, prevented the adoption, saying ICWA applied in his case. The South Carolina courts agreed, and the child, now 3 1/2, has lived with Brown since his challenge.”

Support for the position to uphold the lower court rulings and the protections of the ICWA was characterized as “historic,” a Wall Street Journal column explained.

. U.S. Solicitor General Donald Verrilli and 19 states and state attorneys general were joined by a large array of groups who submitted 24 separate briefs in all. Not one state submitted briefs in support of Adoptive Couple.

The Journal further explains that: “The overwhelming support included 17 former and current members of Congress; Casey Family Programs, the Children’s Defense Fund, and 16 other child welfare organizations; the American Civil Liberties Union; broad coalitions of psychology associations, child advocates, and legal experts; adult Native American adoptees; and tribal amicus briefs which include 333 American Indian tribes.”

Former U.S. Sen. James Abourezk — who led the Commission that unearthed evidence of widespread destruction of Indian families by child welfare agencies in the United States — called the ruling “an assault on tribal sovereignty.”

“It’s an attack on tribal sovereignty through the children,” Abourezk said according to an artlce in Argus Leader. “I can’t believe they did this.”

The former Senator is certainly in a good position to know what the legislative intent of
the ICWA truly was. The House Report that accompanied the ICWA read, in part:

The disparity in placement rates for Indians and non-Indians is shocking. In Minnesota, Indian children are placed in foster care of in adoptive homes at a per capita rate five times greater than non-Indian children. In Montana, the ratio of Indian foster-care placement is at least 13 times greater. In South Dakota, 40 percent of all adoptions made by the State’s Department of Public Welfare since 1967-68 are of Indian children, yet Indians make up only 7 percent of the juvenile population. The number of South Dakota Indian children living in foster homes is per capita, nearly 16 times greater than the non-Indian rate. In the State of Washington, the Indian adoption rate is 19 times greater and the foster care rate 10 times greater. In Wisconsin, the risk run by Indian children of being separated from their parents is nearly 1,600 percent greater than it is for non-Indian children. Just as Indian children are exposed to these great hazards, their parents are too.

The House Report continues on to say: “In some instances, financial considerations contribute to the crisis. For example, agencies established to place children have an incentive to find children to place.” More to the point:

Indian community leaders charge that federally-subsidized foster care programs encourage some non-Indian families to start “baby farms” in order to supplement their meager farm income with foster care payments and to obtain extra hands for farmwork. The disparity between the ratio of Indian children in foster care versus the number of Indian children that are adopted seems to bear this out. For example, in Wyoming in 1969, Indians accounted for 70 percent of foster care placements but only 8 percent of adoptive placements. Foster care payments usually cease when a child is adopted.

Following National Public Radio’s 2011 report Native Foster Care: Lost Children, Shattered Families,which covered the state of Native American foster care in South Dakota, reporting significant violations of the Indian Child Welfare Act by the state’s Department of Social Services, six members of the United States House of Representatives asked then-Assistant Secretary for Indian Affairs Larry Echo Hawk to investigate the claims, report on their veracity, and outline what steps, if any, the Bureau of Indian Affairs would take to rectify the situation.

The Coalition of Sioux Tribes for Children and Families described what happened next in a report issued in late January, 2013:

To our knowledge, the BIA has not undertaken action to investigate and verify the NPR report’s claims. Furthermore, the BIA’s subsequent promise to sponsor a summit on Indian Child Welfare in South Dakota in early 2012 has not been fulfilled. Therefore the members of the Coalition of Sioux Tribes for Children and Families—which is composed of the ICWA Directors of South Dakota’s nine American Indian tribes—have taken it upon ourselves to respond to the Congressmen.

Is the law still needed?

A Report To The US Congress From The Coalition Of Sioux Tribes For Children And Families examined NPR’s reporting point-by-point, demonstrating not only that Native children are indeed represented in South Dakota’s foster care system in vastly disproportionate numbers, but that there also exists a clear and specific economic motive underlying the state’s child removal polices, precisely as NPR had reported:

Nearly $100 million in federal funding is being sent to South Dakota to administer foster care each year. This includes $55 million for Children’s Services,9 $48 million to fund foster children’s health care,10 and $4 million for administration. These federal monies constitute a significant portion of state expenditures, and, according to the healthcare consumer nonprofit organization Families USA, they have “a positive and measurable impact on state business activity, available jobs, and overall state income.” All this demonstrates a strong financial incentive for state officials to take high numbers of Native American foster children into custody. Anecdotal evidence and testimony confirm that this incentive motivates the state’s actions.

By no means is South Dakota the only state in which Native children are disproportionately represented. However, finding truly accurate figures is often made difficult by the absence of complete data. In a 2009 report from the University of Wisconsin, A report: Racial Disproportionality in Wisconsin’s Child Welfare System, researchers noted that in 38,151 instances — slightly more than one half (50.3%) — the ethnicity of the child was listed as either unknown, or the corresponding field was simply left blank. The researchers explained that one result was that: “American Indian children are overrepresented in foster care, but we do not have sound data about their treatment in child welfare beyond investigation.”

The Minnesota Child Welfare Disparities Report, released in 2010, provides some meaningful statistics regarding the disparities in the child welfare system. The study found that American Indian children were more than eight times as likely to be subject of a neglect report, and that American Indian children were placed in out of home care in 2008 at a rate “more than twice that of any other group, and [were] more than 12 times more likely than a white child to spend time in placement.” American Indian children were as high as “six times more likely to be subjects of child protection assessments and investigations than a White child.”

Among the more recent sources on disproportionality is a study released by the National Council of Juvenile and Family Court Judges in May 2012. The study found that: “Across the United States, Native American children are overrepresented in foster care at a rate of 2.1 times their rate in the general population. While not all state show disproportionality, 21 states do have some overrepresentation. Twenty-seven percent of the states that have overrepresentation have a disproportionality index of greater than 4.1. In Minnesota, the disproportionality is index 11.2, in Washington State it is 5.6.”


BJ Jones, director of the Tribal Judicial Institute, provides some of the more recent data in chart form in a worksheet released in August 2012. Using recent data, Jones documents some of the variances between states. The Disproportionality rate for removal of native children has increased in most states over last five years. In Minnesota – An Indian child is 11.6 times more likely to be removed; Washington – 6.9 times more likely; Idaho 6.6; Nebraska 6.8; Iowa 5.4; Alaska 3.1; Montana 3.8; and in South Dakota, Native children are at risk of removal that is 3.9 times higher than the general population.

Tuesday’s ruling is somewhat disappointing, however the decision was narrowly tailored to the facts of the particular case. The ICWA is still alive and well. Now, if only we can get some more States to follow a federal law that has been in effect since the mid-1970s, some true progress would be made. The same may reasonably said of the Adoption Assistance and Child Welfare Act of 1980, which requires agencies to provide “reasonable efforts to reduce the number of innocent families who are impacted by wrongful child removals.