Understanding and Respecting Cultural Differences
Racism is a harsh title applied to the discomfort everyone feels for the unfamiliar. All tribal, herd, and pack animals (including human beings) feel discomfort when confronted with the cultural differences that evolve as tribal boundaries harden into races over the centuries. When this common discomfit led to unhealthy division and abuse, entire social service agencies were created to deal with the aberrant response.
Human beings fear the unfamiliar. This is a natural self-protective response that can only be mollified by education. Once people become more familiar with cultural and tribal differences, they become more understanding and accepting, if not respectful.
Racism’s Impact on Indigenous Peoples’ Cultural Identity
The racist response to African Americans was caused by the institution of slavery and the deep economic divisions it engendered. The racism that indigenous people have had to endure, however, is completely born of ignorance. As Europeans invaded their homeland, the indigenous people fought to save, not only their food and shelter, but also their ancient cultural identity. Once Hollywood got ahold of, and misrepresented that bit of history, relations between the indigenous tribes and the Europeans were doomed to perennial ignorance.
Awakening
From 1878 to 1978 this “well meaning” ignorance endured. Before 1978, for example, it was common for child welfare agencies to place American Native children outside their homes, often based on a misunderstanding or disregard of Native culture. This practice continued a long history of removing Native children from their families, a policy that began with forced federal boarding schools. In the 1970s, studies revealed that 25% to 35% of all Native children were being removed from their families, with 85% of these children placed outside their extended families and communities.
The ICWA
The Indian Child Welfare Act (ICWA) was passed in 1978 to govern the removal and placement of American and Alaska Native children in state child custody cases. It was enacted to address the high rate of American Native children being removed from their families and placed in non-Native homes by public and private agencies. The Act was passed with the purpose of:
- Protecting the best interests of American Native children.
- Promoting the stability and security of American Native tribes and families.
- Protecting the unique cultural values of Native children and tribes.
The Provisions
ICWA sets minimum federal standards for state child custody proceedings involving an “Indian child” who is a member of, or eligible for membership in, a federally recognized tribe. Its key provisions include:
- Tribal jurisdiction: In cases where a Native child lives on a reservation, tribal courts have exclusive jurisdiction. In other cases, the tribe can intervene and request a transfer of jurisdiction from the state court to tribal court.
- Active efforts: The law mandates that state child welfare agencies make “active efforts” to provide culturally appropriate services to keep Native families together and prevent the need for removal.
- Placement preferences: If a child must be removed from their home, ICWA establishes a hierarchy of placement preferences. Placement must first be considered with extended family, then with a member of the child’s tribe, and finally with another Native family.
- Qualified expert witness: In involuntary proceedings, a qualified expert witness with knowledge of the tribe’s culture and family life must testify that continued custody by the parent is likely to result in serious emotional or physical harm to the child.
- Notification: The tribe and parents must be notified of child custody proceedings and have the right to intervene and participate.
Upholding ICWA in the Supreme Court
In 2023, the U.S. Supreme Court decisively upheld the law in the case Haaland v. Brackeen, rejecting arguments that ICWA was a race-based law and infringed on state sovereignty. The Court’s decision reaffirmed the legal principle of tribal sovereignty and reinforced the federal government’s authority to legislate on behalf of Native Americans.
Social Workers Never Rest
Despite ICWA, American and Alaska Native children are still overrepresented in the child welfare system. They are four times more likely to be placed in foster care than their non-Native peers. This highlights the need for continued vigilance and advocacy to ensure ICWA is consistently implemented and enforced to protect Native families and preserve tribal culture.
Explore More Insights from the FAMCare Blog
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Native American Cultural Preservation — An exploration of efforts to safeguard Indigenous identity through language revitalization, arts, legal protections, and community festivals.
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Handle With Care — A look at how sovereignty, social services, and laws like ICWA work to protect Native children and uphold cultural continuity in child welfare.