On June 15, in a landmark decision, the Supreme Court voted to uphold the Indian Child Welfare Act (ICWA), after it was challenged by a non-Indian couple (Chad and Jennifer Brackeen) who claimed they were experiencing racial discrimination because the law was trying to stop them from adopting a second Native American child. Since its creation, ICWA has been deemed the gold standard of adoption practices because it advocates for the best interests of the child as well as upholding tribal sovereignty.
As an adoptee and adoption educator, I believe that agencies and adoption professionals could use several key aspects of ICWA and adapt them to prioritize the needs of children from all cultures and backgrounds. Here’s why:
What Is the ICWA?
In 1978, ICWA was created in response to the removal of Indigenous children from their homes and placement in primarily non-Native homes at a significantly higher rate than non-Indigenous children.
While ICWA was put in place to protect Indigenous families and children, the adoption community can learn a lot from its principles.
For years, the adoption industry has depicted adoption as a means for couples to have children, rather than a tool to make sure children’s needs are prioritized (like matching them with child-centered and trauma-informed parents). We have seen this with race-based pricing for adoption fees, coercion of birth parents in crisis, and a lack of follow-through and support for children once adoption procedures were finalized.
But ICWA models ethical principles that prioritize the needs of the child rather than the desires of the adoptive families by pushing for family preservation and the importance of cultural ties. Here are two key aspects of ICWA and how they can further influence the adoption industry moving forward.
Models the importance of family preservation
ICWA mandates that the state makes active efforts to provide services to families to help prevent the removal of children from the home. In the case that the child does need to be removed, they must authentically try to reunify the family.
Typically family preservation services are designed to help families cope with problems that impact their ability to care for their children when possible and safe to do so. When it comes to family preservation, workers are supposed to help parents identify the needs of the family, and provide resources to help them raise their children in a safe and healthy environment. Right now the state is supposed to use “reasonable efforts” to provide services to make family preservation possible, but all too often caseworkers are overworked and underpaid, and the resources families receive may not be enough to authentically support them and their children.
Affordable child care, counseling, health care services, and vocational counseling can help support families, these resources can be an uphill battle to get, particularly on a consistent basis. Having ICWA stand, and model the importance of family preservation, can help push for newer adoption laws and policies that will make services and assistance easier to access.
While years ago, we could simply turn a blind eye to the lack of follow-through for family preservation, the rise of social media has helped elevate birth parent and adoptee voices allowing them to share their experiences. The adoption community cannot ignore the need for further support much longer.
Puts pressure on agencies to put forth more effort to focus on cultural ties when it comes to fostering and adoption
Laws like the Multiethnic Placement Act (MEPA) prevent officials from delaying or denying the foster or adoptive placement of children in families based on their race or ethnicity. On the surface, policies like this can seem like they help, but they have historically hindered agencies from properly vetting and educating hopeful adoptive parents intent on adopting a child from another culture or ethnicity. MEPA was supposed to decrease the amount of time children were waiting to be adopted and prevent racial discrimination, but implementation has been difficult due to misinterpretations that lead to confusion about the law.
And while many people are familiar with the first aspect of this Act, many agencies do not put forth enough active effort to fulfill the second vital part of MEPA—recruiting more diverse foster and adoptive parents that reflect the cultural diversity of children in need of placements.
ICWA has historically intended to prioritize the placement of children first with a member of their Indigenous extended family, the child’s tribe, or another Native American family. Childcare social workers have historically been overworked and underpaid, and do not always have the necessary training to help them bridge the cultural barriers between the communities. As of 2020, a report found that 34 of 50 states’ diligent recruitment efforts needed significant improvement in four areas:
- Teaching people how to become foster/adoptive parents
- Training staff on how to work with diverse communities
- Arranging strategies for language barriers
- Problems with discriminatory fees
How the ICWA can influence current adoption practices
Here are three ways the ICWA’S principles could help further promote ethical adoption practices in the United States:
Allow more time for families to prepare
Right now, The Adoption and Safe Families Act, prioritizes permanency for children in foster care and pushes for the termination of parental rights once the child has been in foster care for 15 out of the previous 22 months. And while the intentions of the law are to provide permanency for children we have seen issues with shortages in services for families, insufficient efforts to find and engage fathers, as well as inconsistent practices. ICWA allows families additional time for preparation in court proceedings instead of allowing social workers to continue to separate BIPOC families at such disproportionate rates to their white counterparts. Evidence for the removal of a child needs to be supported beyond a reasonable doubt and requires active and timely efforts by the States to reunite families together.
Prioritize the birth family’s understanding of the process
Courts must certify that the birth parent or guardian fully understands consent to placement or termination of parental rights in their preferred language. This also means that pre-birth matching (matching a couple with an expectant parent before birth through online profiles and advertising through social media) and consent within 10 days after birth would no longer be valid, further allowing the family time to make decisions without further pressure from a hopeful adoptive couple.
Require better record keeping
Consent from the parent in voluntary termination can be withdrawn at any time prior to the final decree of termination. It also requires the State to keep accurate records of placement that provide evidence of compliance with efforts to put the child in a preferred placement. Requiring the State to keep updated records, can help prevent the disappearance of foster children and adoptees.
