Law | Opinion

Sherry Treppa: Court decision threatens the Indian Child Welfare Act

Monday, October 29, 2018

Why the ICWA is critical to the health of native children and tribal communities

By Sherry Treppa

A Texas judge’s recent decision to strike down the Indian Child Welfare Act, or ICWA, sets a dangerous precedent that unravels federal policy carefully designed to correct centuries of tragic injustices committed against Indian people.

It not only threatens the wellbeing of Native children and their families, but also tribal sovereignty. Further, the ruling could undo many of the collaborative relationships our tribes have forged with local governments and states that already acknowledge the benefits of preserving Native families.

Part of this country’s tragic past was forced assimilation that prevailed until the civil rights movement in the 1960s. Sadly, the federal government had a stated goal to destroy the culture, languages, and traditions of American Indians through official programs where Indian children were forcibly removed from their families and sent to the now infamous government-run boarding schools or outright adopted to non-native families. These policies wreaked havoc on the emotional well-being of generations of Indian children, contributing to high levels of suicide and substance abuse.

Sherry Treppa serves as chair of the Habematolel Pomo of Upper Lake, a federally-recognized tribe in California. Courtesy photo

This practice of our country’s past is not unlike the more current narrative around the inhumane separation of immigrant children from their parents at the U.S. border. The social outcry that has ensued from these recent border events leaves me, as a parent and Tribal leader, crying for those poor parents and sickened that the First Nations of this country are given less consideration. Where is the outpouring for our Native babies?

Congress passed the ICWA in 1978 in an attempt to reverse the ravages that forced separation of Native children from their families wrought on Indian people. In Native cultures, families are the center of our communities, and children are sacred gifts from the Creator. Judge O’Connor’s ruling not only threatens our future – it outright discounts generations of historical anguish.

The ruling also ignores the rights of tribes as sovereign governments. The ICWA only applies to children from federally recognized tribes, and tribes – as sovereign governments – are the only legal authority to determine the membership of a tribe. Destroying a tribe’s ability to speak out for its future – our children – undermines the modern efforts of tribal government to overcome hundreds of years oppression because of the U.S. government’s aggressive control over every aspect of tribal citizens’ lives, including our relationships with our own children.

“Make no mistake, this is an intentional and direct attack on tribal sovereignty and our families and children,” Sarah Kastelic, executive director of the National Indian Child Welfare Association, said of recent court decision striking down ICWA as unconstitutional. #NCAI75 pic.twitter.com/E3Z6wCLUuY
— indianz.com (@indianz) October 23, 2018

Several years ago, my tribe – the Habematolel Pomo of Upper Lake – as well as five other tribes in Lake County, worked with County Department of Social Services to form an ICWA Working Group. Together, we have recognized that the ICWA not only helps ensure a child stays within an Indian community, it also helps facilitate a team approach to improving outcomes for Native children and the agencies and tribes working with high-risk Indian families. Using ICWA as a basis for collaboration provides a child access to tribal resources, helping to improve emotional wellbeing, avoid generational post-traumatic stress disorder, and expand otherwise limited foster care placement prospects.

My tribe also helped found the California Tribal Families Coalition, or CTFC, with the explicit mission to protect the health, safety and welfare of tribal children and families, which are at the core of our sovereignty and governance.

CTFC Executive Director Delia Sharpe told me, “As we prepare for the next phase of this case, CTFC stands with tribes in defense of ICWA, as an essential protection to keep Indian children connected to their families, cultures and communities.”

This ruling goes well beyond the implications for Native families. It furthers a dangerous and very real, anti-Indian narrative and undermines the legal framework protecting Native American self-determination. This ruling is a slippery slope which could result in the further erosion of federal, state, and local policies meant to protect tribes.

As tribal leaders, we are confident in the constitutionality of the ICWA. The Habematolel Pomo Tribe of Upper Lake joins other tribal leaders in condemning Judge O'Connor's decision. Further erosion to the Indian Child Welfare Act is an affront to our culture, our families and our self-determination.

Sherry Treppa is chair of the Habematolel Pomo tribe of Upper Lake, California.