Attorney General Tony West Delivers Remarks at the National Indian
Child Welfare Association’s 32nd Annual Protecting Our Children
Thank you, Theodore and Alex, for that kind introduction and for
inviting me to join you today at this conference. It is wonderful to be
here with so many friends, colleagues, and supporters. And it is an
honor to share the stage this morning with two great partners, Assistant
Secretary Washburn and Associate Commissioner Chang.
I would especially like to thank NICWA and its members for the work that
you do -- day in and day out -- to strengthen Indian tribes, to support
Indian families, and to protect Indian children in both state
child-welfare and private-adoption systems throughout our nation.
And I think it's fitting that what brings us together this morning, this
week -- from communities across this country -- is our commitment to
children, particularly Native children. I think it was the French
philosopher Camus who wrote about this being a world in which children
suffer, but maybe, through our actions, we can lessen the number of
Indeed, what brings us to Ft. Lauderdale is that promise we make to all
of our children: that their safety and well-being is our highest
priority; that they are sacred beings, gifts from the Creator to be
cherished, cared for, and protected.
It was that promise that, nearly forty years ago, led Congress to hold a
series of hearings that lifted the curtain and shed light on abusive
child-welfare practices that were separating Native children from their
families at staggering rates; uprooting them from their tribes and their
culture. Roughly one of every three or four Indian children, according
to data presented at those hearings, had been taken from their birth
families and placed with adoptive families, in foster care, or in
institutions that had little or no connection to the child's tribe.
And in the face of that overwhelming evidence, a bipartisan Congress acted and passed the Indian Child Welfare Act of 1978.
And in the four decades since, as everyone here knows, ICWA has had a
dramatic impact. Families, tribes, social workers, and Indian foster
and adoptive parents have invoked ICWA’s core protections to stem the
most flagrant abuses.
Tribes no longer face the prospect that a quarter to a third of their
children will simply disappear, shipped off to homes halfway across the
country. Today, in many places, tribes and states have developed
productive working partnerships to implement ICWA – partnerships that
ensure that Indian families and cultures are treated with the respect
And while it is right for us to recognize the landmark achievement that
is ICWA, we also know that there is much work left to do. There is more
work to do because, in some states, Native children are still removed
from their families and tribes at disproportionately high rates.
There's more work to do because nationwide Indian children are still two
to three times as likely as non-Indian children to end up in foster
care; in some states the numbers are even larger.
There's more work to do because every time an Indian child is removed in
violation of ICWA, it can mean a loss of all connection with family,
with tribe, with culture. And with that loss, studies show, comes an
increased risk for mental health challenges, homelessness in later life,
and, tragically, suicide.
So, as far as we have come since ICWA became law in 1978, we have farther still to go.
You all know this is true from both professional and personal
experience. And I want you to know that President Obama and Attorney
General Eric Holder share your commitment to improving the welfare of
Indian children and are committed to working with you to help achieve
Although ICWA speaks primarily to the responsibilities and
roles of the states and the tribes, we believe there’s a constructive
part for the federal government to play.
That's why the White House has directed the Departments of the Interior,
Health and Human Services, and Justice to engage in an unprecedented
collaboration to help ensure that ICWA is properly implemented. I
believe we will hear more about this effort from Assistant Secretary of
the Interior Washburn in a few minutes.
For our part at the Justice Department, our main ICWA contributions have
focused on precedent-setting litigation that can affect ICWA's reach
and force. One of ICWA’s most important provisions is its recognition
that Indian tribes, as sovereigns, have presumptive jurisdiction over
Indian child-custody proceedings. And over the years we have worked
hard to help protect this tribal jurisdiction by participating in
federal and state court litigation as an amicus curiae, or “friend of
In Alaska, for example, we’ve participated in a line of cases over the
last 20 years to ensure that Alaska tribes have jurisdiction over
child-custody disputes. Starting with the landmark John v. Baker case,
we’ve filed multiple amicus briefs in the Alaska and U.S. Supreme
Courts, successfully arguing that even tribes that lack “Indian country”
retain jurisdiction to address child-custody disputes.
Of course, we've not always prevailed. Last June's U.S. Supreme Court
decision in Adoptive Couple v. Baby Girl
, which narrowly interpreted
ICWA and terminated the parental rights of a Cherokee father in
connection with his daughter, was decided over our arguments in support
of the father.
But even when we don't prevail, our legal arguments can have a major
impact on the ultimate decision. You'll recall that in Baby Girl, one
of the arguments advanced by the adoptive couple was, essentially, that
ICWA was unconstitutional -- that it "upset the federal-state balance,"
suggesting that Congress was prohibited from overriding state
child-custody law when an Indian child was involved.
We countered that applying ICWA in that case raised no constitutional
concerns, as Congress has plenary authority to protect Indian children
from being improperly separated from Indian communities. And on this
point, we were successful: even though we lost the ultimate issue and
the High Court ruled against the Cherokee father, the Court did not rely
on the adoptive couple's constitutional argument and did not rule that
ICWA was unconstitutional.
Notwithstanding setbacks like the Baby Girl decision, we will continue
to stand up for ICWA because, as we said in the Supreme Court, it's “a
classic implementation of Congress’s plenary [trust] responsibility . . .
for Indians.” You see, for us, standing up for ICWA means standing
strong for tribal sovereignty. "Nothing could be more at the core of
tribal self-determination and tribal survival,” we said during oral
argument in the Baby Girl case, “than . . . [determining] tribal
membership and . . . [caring] about what happens to Indian children.”