By Vicki Spriggs
Chief Executive Officer of Texas CASA
If you follow child welfare, you may be aware of the recent legal challenge to the Indian Child Welfare Act (ICWA) – the federal law that governs child custody proceedings for American Indian and Alaska Native children and their families.
Enacted in 1978 to address a family separation crisis involving American Indian and Alaska Native children, ICWA gives tribes the option to take exclusive jurisdiction over cases involving children of Native heritage – whether they are members of the tribe, wards of the tribe, or not currently residing within the reservation of their tribe. If you’re not familiar with ICWA, here is a quick summary of what is happening in Texas.
In early October, U.S. District Judge Reed O’Connor struck down ICWA as unconstitutional in the case of Brackeen (Texas) v. Zinke, finding it “illegally gives Native American families preferential treatment in adoption proceedings for Native American children based on race, in violation of the Fifth Amendment’s equal protection guarantee.” Some saw this ruling as a victory, arguing ICWA discriminates based on race. Others, however, feared the ruling would not only jeopardize Native children who are already more likely to be removed from home, but also endanger years of legal precedent affecting tribal sovereignty. The United States and Tribal Defendants both appealed the ruling to the U.S. Court of Appeals for the Fifth Circuit, and on Dec. 3, the Court of Appeals issued its order in the case, granting the Tribal Defendants’ motion to stay judgment pending appeal.
In layman’s terms: despite the challenge and initial ruling against it, ICWA remains in effect for now, pending further action by the court.
There are groups who feel strongly for, and against, ICWA, as tends to be the case with these kinds of issues. But what we can all agree on is that the ruling on this case will have an impact on the children we serve. So, as guardians of the best interest of these children above all else, we in the CASA community owe it to them to take a moment and make sure we understand ICWA’s history and why it was needed in the first place, and where we are today.
ICWA was enacted in 1978 in the midst of a nationwide crisis affecting American Indian and Alaska Native children, families and tribes. At the time, alarming numbers of Native children – 25%-35% of all Native children nationwide – were being removed from their parents by state child welfare and private adoption agencies. Of those children, 85% of them were placed outside their families and communities, regardless of whether or not willing relatives were available to take them in.
ICWA helped address some of the problematic removal practices targeting these children and their families, requiring caseworkers to make several considerations for Native children in order to ensure their families and tribes were actively involved in the case, and that they were kept in the care of relatives whenever safe and possible.
Although things have gotten better as a result of the law, American Indian and Alaska Native children are still disproportionately represented in the child welfare system nationwide. A study by the Annie E. Casey Foundation found that, due in large part to systematic bias, these families are about two times more likely to be investigated, two times more likely to have abuse allegations substantiated, and Native children are four times more likely to be placed in foster care than white children.
If we truly believe in our vision of a safe, positive future for all Texas children, is this – the current reality – something that we can stand for? Don’t these children deserve better?
I believe they do. And I believe we can, and will, do better for them. In fact, we already are doing better for them – Collaborative Family Engagement (CFE), Texas’ approach to Family Finding, continues to spread across the state, ensuring more and more children are better connected to their families, cultures and communities. One of the things of which I am most proud, concerning the work of CASA, is our desire to keep families and communities connected to the children in these cases. CFE directly provides tools for CPS and CASA to engage families and strengthen their cultural bond.
One example of CFE’s reach in this area is our agreement with the 11 Consulates of Mexico in Texas that sets the collaborative framework for us to work together in serving the best interest of Mexican minors and children of Mexican origin in the foster care system. A core objective of this partnership is to connect each child with their family, regardless of whether the family resides in Mexico or the U.S. – so that every child may benefit from the connections and support that family provides.
We hope to open similar doors for our Native children and families. Recently, our CFE team, CASA of El Paso and CPS got the opportunity to meet with the Tigua indigenous tribe to introduce CFE to their social services department. They were invited on the reservation to meet with social workers, counselors and others who provide services to the tribe to speak with them about CFE tools, and the collaboration and the benefits they have seen with families using CFE. We often say that CFE is “not business as usual,” and it’s not – it is looking at families from a holistic approach, an approach that that so many tribes already have. We are learning from their worldview and bringing it into our practice to better serve children and families, incorporating things like storytelling and art, and respecting traditions and the family voice.
So many losses have already occurred for our children in care that we must do all we can to support their identity and the rich history and culture that only connection to family and community can provide. On a related note, a brief but important aside to CASA advocates: Don’t forget to ask the child and family you are advocating for if they identify as Native American – never assume you can tell just by looking.
So as we await the final ruling on ICWA, CASA will not falter in our work to ensure every child in foster care in Texas is connected to their heritage and surrounded by loving, committed support networks that will last long after CASA and CPS involvement ends.
UPDATE (Jan. 14, 2019): California Attorney General Xavier Becerra led a bipartisan coalition of 21 states in filing an amicus brief in the Fifth Circuit Court of Appeals to defend the Indian Child Welfare Act (ICWA) in Brackeen v. Zinke. Joining Attorney General Becerra in filing the brief are the Attorneys General of Alaska, Arizona, Colorado, Idaho, Illinois, Iowa, Maine, Massachusetts, Michigan, Minnesota, Mississippi, Montana, New Jersey, New Mexico, Oregon, Rhode Island, Utah, Virginia, Washington and Wisconsin. Learn more, and read the brief, on the California OAG website.
If you are not currently involved with CASA, I ask you today to consider how you can play a part in making a difference in the lives of our most vulnerable children. Are you ready to take the first step towards becoming a CASA volunteer? Visit BecomeACASA.org to learn how you can speak up for a child who needs you. You can also support the work of Texas CASA by making a secure online gift that will benefit the local CASA volunteer advocacy programs across the state.