Society & Politics

The Irrelevancy and Abuse of the Indian Child Welfare Act.

Recently in California, a custody battle has ensued where 6-year old Lexi was removed from the Pages, her foster home of 4 years, on the grounds that she is 1/64 Choctaw which is enough for her to fall under the Indian Child Welfare Act, which was passed in 1970 to reunite Native American families broken up at disproportionately high rates do to cultural ignorance and biases within the child welfare system and was sent to live with non blood relatives in Utah who were only related through marriage. They also have custody of her biological sister. However Lexi was removed from her birth parents care at 17 months because her mother suffered from substance abuse problems and her father had a criminal record and was arrested for illegally selling auto parts, not because of biases and ignorance in the foster care system which was why the law was put there in the first place. However the Choctaw Nation have used the ICWA as an easy excuse to have Lexi removed from her foster home. I must also state that she is 1/64 Choctaw so basically she is 98% non-Native American.

The Irrelevancy and Abuse of the Indian Child Welfare Act.


As stated above, the law was put into place because children were being removed because of cultural biases and ignorance. The Choctaw Nation has issued statements which include, "We believe that following the Choctaw Nation's values is in Lexi's best interest" and “The Choctaw Nation desires the best for this Choctaw child. The tribe’s values of faith, family and culture are what makes our tribal identity so important to us. Therefore we will continue to work to maintain these values and work toward the long-term best interest of this child.” So in term, the Choctaw Nation is using the ICWA, which was put into place because children were removed do to cultural biases and ignorance, because they don’t want Lexi to be raised in a non-Native American culture and instead want her to be raised in the tribe’s culture, so in term Lexi is being removed due to the cultural bias and possible ignorance of the Choctaw Nation. The irony holds no bounds.



Now the ICWA is greatly flawed and loose and has been abused many times and has resulted in deaths of many children. Congress set up both procedural and substantive provisions in the ICWA that are designed to: eliminate the need to remove Indian children due to cultural bias, try to insure that Indian children are place in foster and adoptive homes that reflect Indian culture, and to promote the use of tribal courts to adjudicate Indian child custody proceedings rather than state courts. The second provision I view as unconstitutional as it favors one culture or faith which the government has stated we will not be ruled by one faith or religion. In the United States Supreme Court Cases, Mississippi Band of Choctaw Indians v. Holyfield, “In 1985, a set of Indian twins were born in Harrison County, Mississippi, 200 miles from the Mississippi Band of Choctaw Indians. The mother had moved to Harrison County for the sole purpose of giving birth off the reservation and for placing the children with the Holyfields. The parents were not married, and both parents executed a consent foradoption in the Harrison County Chancery Court and the Holyfields, a non-Indian couple adopted the children. The court signed a final decree of adoption in early 1986. Two months later, the tribe moved to vacate the adoption, stating that the tribal court had exclusive jurisdiction. The state trial court denied their motion, noting that the children had never lived on the reservation and were not born there. The tribe appealed to the Mississippi Supreme Court, which affirmed the trial courts decision. The tribe appealed. The Supreme Court granted certiorari.” The parents went off the reservation and the children were born off the reservation and were therefore not members of the tribe.



“Justice William J. Brennan delivered the opinion of the court. Brennan reviewed the intent of Congress and noted that one in eight Indian children were adopted out and that 90% of those children went to non-Indian homes. He noted that for children born or residing on a reservation, the tribal court has exclusive jurisdiction. In other cases, the tribal courts have concurrent jurisdiction. In those cases, on the motion of a parent or the tribe, the matter is to be transferred to the tribal court with three exceptions - for "good cause," objection to the transfer by either parent, or the declination of jurisdiction in the matter by the tribal court. The emphasis the Mississippi Supreme Court placed on thedomicile of the children, the fact that they were never on the reservation, and the voluntary relinquishment by the natural parents was error.” So I interpret this that the parents have no rights when it comes to the placement of their own children which could get into the area of womens rights and whether a woman can decide on where she wants to give birth and where she could want that child to be. The tribe eventually let the twins to stay with their adoptive parents but a court ordered them to keep in touch with the tribe.



Tribes have used this law to put children back in Native American homes, even ones that were unfit.



“Declan Stewart was 5 when he was beaten to death by his mother’s live-in boyfriend. Declan had been removed from her custody by Oklahoma state officials in 2006, after his skull had been fractured and he received severe bruising between his testicles and rectum. But when the Cherokee Nation objected to his removal, Oklahoma, knowing how the ICWA favors tribal rights, relented. Declan was killed a month after being returned to his mother.” - The Washington Post


“From age 9 months until she was almost 3, Laurynn Whiteshield and her twin sister were in the foster care of Jeanine Kersey-Russell, a Methodist minister in Bismarck, N.D. But when Kersey-Russell tried to terminate the twins’ parents’ rights in order to adopt them, the Spirit Lake Sioux tribe invoked the ICWA and the children were sent to the reservation and the custody of their grandfather. Thirty-seven days later, Laurynn died after being thrown down an embankment by her grandfather’s wife, who had a record of neglecting, endangering and abusing her own children. Laurynn’s sister was returned to Kersey-Russell.” - The Washington Post



The argument of Lexi’s placement I’m all for and I personally think she should be put in the home she has lived in for 4 years. But the fact that the Utah relatives and Choctaw Nation are hiding behind this irrelevant, unconstitutional, and greatly flawed law is despicable, especially when their reasons for wanting lexi removed are the exact same reasons child welfare services were removing indian children from their families back before the law was in place, cultural biases and ignorance.

The Irrelevancy and Abuse of the Indian Child Welfare Act.
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