Terry Cross: Fighting for our children -- 35 years after ICWA

Thirty-five years ago today, Congress enacted groundbreaking legislation, the impact of which has been arguably more profound than any other piece of federal Indian law in the modern era. On November 8, 1978, the Indian Child Welfare Act, otherwise known as ICWA, became law. While recent national attention has highlighted the law’s role in child custody and adoption proceedings involving tribal citizens, less credit has been granted to ICWA for its wider affirmation of tribal sovereignty as a guaranteed and guiding tenet of federal law.

In ICWA, Congress affirmed tribal authority to protect American Indian children through their own laws, courts, and services. It recognized that tribal courts are of commensurate standing to state courts. ICWA established minimum standards for states to follow in issues of custody and adoptions, giving tribes the right to intervene in state court proceedings as full parties. In an extraordinary acknowledgment of tribal sovereign authority for the time, ICWA provided protection to all tribal citizens no matter where they resided. As such, ICWA served as a catalyst for subsequent legislation that further restored the capacity of tribes to govern themselves and reinforced the era of self-determination for tribal nations.

Yet all of these sovereignty-affirming provisions were not the intended purpose of ICWA. Rather, ICWA was aimed at stopping the inappropriate removal of our children from their parents, extended families, tribes, and culture by non-Indians. In the 1970s, studies documented the horrifying experiences of thousands of American Indian families: one out of every four of our children was being removed from their families. Of these, 85 percent were placed in non-Indian homes. Often such placement meant these children were cut off forever from loving extended families, their culture, community, and traditional way of life. The resulting trauma experienced by American Indian children, families, and entire tribes was as wounding as any assimilationist policy ever inflicted upon our people.