The Indian Child Welfare Act: A Unique Law within a Flawed System

Jul 13, 2023
Faride Perez-Aucar

Page Media

A photo of a young child holding her mother's hand.

While the U.S. Supreme Court's recent affirmation of the Indian Child Welfare Act is a landmark victory for tribal sovereignty, what remains is a flawed system for protecting children and keeping families together.

For decades, the United States has surveilled and regulated families under the guise of protecting children from abuse and neglect. The state’s emphasis on control and punishment has led advocates to adopt the term “family policing system” in place of the commonly used “child welfare system.”

With little accountability, the family policing system disproportionately targets and penalizes Black, Indigenous, other parents of color, and low-income parents, particularly mothers—disrupting families and communities.

Rather than provide support for families struggling with poverty, unemployment, and a lack of childcare and affordable housing, the government routinely removes children from their parents’ care and places them in foster homes. Studies have shown that removing children from their home is harmful and can have negative impacts for generations.

The destructive legacy of family policing in this country began with chattel slavery, which relied on the forced separation of Black families to supply labor. Beginning in the early 19th century, genocidal policies targeted Native American tribes and systematically separated Indigenous children from their families, culture and traditions. 

Indian Child Welfare Act

Within the flawed family policing system, the Indian Child Welfare Act (ICWA) provides an imperfect model for how the government should support parents and uphold familial and cultural ties.

ICWA prioritizes placing Native children with extended family, members of their tribe, or another Indigenous family when they are separated from their parents. The law also establishes the right of a child’s parent and tribe to be involved in custody proceedings. Before Congress passed ICWA in 1978, state welfare agencies and private adoption firms were removing 25 percent to 35 percent of Native American/Alaska Native children from their homes, and 85 percent of those children were placed outside of family or community care with non-Native guardians. Today, about a third of the ICWA-eligible children in foster care in California live in non-Native households. 

In 2023, the U.S. Supreme Court had an opportunity to eliminate ICWA’s protections, but in a surprise ruling, the court rejected constitutional challenges to the law. An unfavorable outcome in Brackeen v. Haaland could have had far-reaching implications for Native families, tribal sovereignty, and broader efforts to keep intact families of all races ensnared in the family policing system.

The Family Policing System Pipeline

More than 200,000 children enter the foster care system every year, often based on unsubstantiated reports of neglect related to poverty. Even with ICWA, Indigenous children are still overrepresented in the family policing system. According to a recent study, half of Native children in California are investigated before they reach 18. Similarly, Black children are nearly twice as likely to be subjected to child welfare investigations as white children, and as much as four times as likely to be placed in foster care.

California defines general neglect as “the negligent failure of a parent/guardian or caretaker to provide adequate food, clothing, shelter, or supervision where no physical injury to the child has occurred.” This broad definition frequently leads to investigations of vulnerable families contending with houselessness, lack of childcare, or access to basic resources. Social workers’ decisions about whether a family’s living conditions amount to neglect are subjective, leaving parents little recourse if they try to defend themselves in court.

Under state law, social workers, medical practitioners, teachers, and other professionals who interact with children must report suspected child abuse or neglect to police or county welfare agencies. Research shows that, rather than protecting children, such mandatory reporting may cause irreparable harm by involving families in the family policing system. Separated birthing people and babies are especially at risk for negative health outcomes. Furthermore, many studies have found that children do better at home than in foster care, where they often face sexual, emotional, and physical abuse, missed education, and a breakdown of their social networks.

In 2017, only 9 percent of the more than 4 million mandated reports nationwide resulted in substantiated investigations. Of those, three-quarters were related to neglect, not actual abuse. To reduce the number of children entering the family policing system in California, in 2022 ACLU Cal Action supported and helped pass legislation that narrowed the definition of “general neglect” for the purposes of mandated reporting to situations where a child is at risk of physical harm or illness. As of January 2023, a parent’s economic circumstances alone no longer trigger a report under the law.

The Supreme Court’s ICWA decision is an important win, but we know more needs to be done to support families. ACLU NorCal is committed to expanding protections for children and developing a system that accounts for the persistent effects of systemic racism, acknowledges the importance of culture, prioritizes family reunification, and provides support. Instead of removing children from their homes as the first resort, the government must help families stay together.

To learn more about how we are fighting to end the family policing system, click here.