Nowhere is the contrast between good tribal governance and failed state government more glaring than in the federal lawsuit over the constitutionality of the Indian Child Welfare Act. In Texas, the state child foster care system is a human rights calamity, where the physical, sexual, and emotional abuse of children is the norm. The state’s response was not to take responsibility, but to challenge the constitutionality of the ICWA. Texas now faces $75,000 daily in contempt of court sanctions as a result of its continued failure to reform the child welfare system.
The Texas case is not really about child welfare; the state’s own child welfare agency “fully supports” the ICWA, as it stated in its 2015 comments submitted in response to the proposed federal ICWA regulations.
The suit is pure political theater.
Accepting Texas’s challenge, the Fifth Circuit Court of Appeals, which covers Texas, Louisiana, and Mississippi, recently struck down several parts of the ICWA as violative of states’ rights.
A national coalition of child welfare agencies told the Supreme Court in 2013 that the ICWA is considered the “gold standard for child welfare policies and practices that should be afforded to all children.” Before the act, parents (Indian and non-Indian) whose children had been removed by the state after allegations of abuse and neglect rarely had basic due process protections. States have 48 or 72 hours after removing a child to hold an emergency removal hearing that justifies their actions, but they were not providing notice of the hearing to affected parents. If families did show up, courts would not allow them to testify, present evidence, or cross-examine witnesses. The ICWA required states to provide minimum procedural protections to Indian families.
The act also requires states to take “active efforts” to reunify Indian families. Most states rush to terminate parental rights where they can find an adoptive family. Though it only applied to Indian families, the ICWA has changed the legal culture of child welfare in this country. Nine states, including several red states, have adopted the ICWA as state law. With important exceptions, such as the right to counsel for indigent parents, states improved their child welfare systems to meet the act’s requirements for all.
After four-plus decades of the ICWA, Texas suddenly has decided that the act is unconstitutional. Texas doesn’t want to comply with the minimum due process requirements for Indian parents and doesn’t want to make active efforts to reunify families. For Texas, children are a costly burden that it very much would like to turn over to the private sector. Texas doesn’t care about good governance. Texas cares about the Tenth Amendment.
Indian tribes, on the other hand, are true laboratories of best child welfare practices. Proportionally, Indian tribes dedicate far more government services money to child welfare than any state. Tribes develop healing to wellness courts. Tribes fight the termination of parental rights whenever they can. Tribes go the extra thousand miles to try to reunify their families who struggle.
The ICWA case soon will be in front of the Supreme Court. The Court will, of course, focus on the legal questions, but the backdrop to that case will be whether sovereignty or good governance prevails.