When It Comes to Native American Children, Tribes Know Best

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Kara Hawzipta works at her computer in a classroom at the Cherokee Nation Immersion School in Tahlequah, Oklahoma in October 2010. Legal attacks on the Indian Child Welfare Act threaten to deny tribes the ability, and the right, to look after the welfare of their children, the author argues. Sue Ogrocki/AP

Thirty-seven years ago, the federal government passed a law to keep Indian children safe. Today that promise, embodied in the Indian Child Welfare Act (ICWA), is under assault.

America's multibillion-dollar adoption industry and its allies seek to undermine the ICWA's enforcement by filing a lawsuit they hope to take to the Supreme Court. If successful, the lawsuit would deny tribes their right—and their duty—to look after the welfare of their children.

As Indian people, we have always known that it's in our children's best interests to stay in the homes of their families and to remain connected to their tribes. In 1978, Congress recognized this fact and passed the ICWA. The law states that it will "protect the best interests of Indian children and to promote the stability and security of Indian tribes and families."

Congress passed the ICWA because such protections were desperately needed in the 1970s. At the time, state officials would all too frequently tear Indian children from their homes for reasons of cultural chauvinism and ignorance. From there, the children were served up to the willing hands of America's adoption industry.

The ICWA was meant to stop this cultural genocide by creating a legal presumption that Indian children belong in their own homes, if possible; and if not, then with other family or tribal members.

To help ensure this protection was enforced, the ICWA gave tribes the ability to intervene in state courts on behalf of tribal children who had been removed from their homes.

Today, the ability of tribes to protect their own children remains vital.

To see why, consider the case of an adoption attorney in Oklahoma whom the police recently charged with 25 felony counts, including child trafficking. Sadly, those who make a living offering Indian children up for adoption too often stoop to dubious, or even criminal, tactics. Without the ICWA, tribes would be helpless to protect those children.

Yet legal attacks on the law continue. This summer in Arizona, the Goldwater Institute—claiming to speak for all Indian children in foster care or up for adoption—filed a lawsuit against the law. Their goal is to get the Supreme Court to declare the ICWA unconstitutional.

This would betray the promise of the ICWA and strip Indian children of the law's valuable protections. The court would have to decide that it knows the best interests of tribal children better than their tribes do.

This would not only be breathtakingly arrogant. It would also require the court to ignore the repeated failures of the United States to protect tribal children in the years before the law was passed.

For example, the ICWA requires proper notice to parents and tribes of adoption proceedings. This helps ensure all adoptions are fair and transparent. Only those trying to force, rush, or illegally procure adoptions would be opposed to such minimum safeguards.

Casey Family Programs, the Child Welfare League of America and several other national child welfare organizations, in response to the Goldwater Institute's attack on ICWA, said that the ICWA "applies the gold standard for child welfare decisions for all children, and unraveling its protections could cause significant harm for Indian children."

These organizations deal with both private adoptions and state foster-care cases. And they all agree that the "ICWA embodies the best practices in child welfare." We have known this for years.

History has shown that only Indian people and tribal governments can be counted on to protect the interests of their children. The adoption agencies seeking to overturn the ICWA arrogantly claim that they know what is best for Indian children. But all too often, their interest lies in collecting adoption fees quickly and with minimum fuss.

Tribal nations will defend the ICWA with everything they have. Fortunately, President Obama has been a staunch ally in honoring the federal government's promise to uphold and enforce the ICWA. This country must not return to a time in which others presume to decide what's best for tribal children.

Bill John Baker is the Principal Chief of the Cherokee Nation.