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Law Protecting Native Children Against Family Separation is Challenged

The Indian Child Welfare Act was enacted in 1978. (USDA NRCS Montana/Flickr)
The Indian Child Welfare Act was enacted in 1978. (USDA NRCS Montana/Flickr)
January 24, 2020

HELENA, Mont. - A federal court is considering challenges to a four-decades-old law put in place to protect Native American children against state-led efforts to break up families.

Judges at the 5th Circuit Court of Appeals heard arguments this week on the Indian Child Welfare Act or ICWA, which gives tribes jurisdiction over children in custody, adoption and foster-care cases. Challengers include three non-Native families looking to adopt Native children, who argue the law is unconstitutionally race-based.

Lillian Alvernaz, indigenous justice legal fellow with the American Civil Liberties Union of Montana, says forced family separation has an ugly past. She says she felt privileged to grow up in her Dakota and Nakoda culture.

"It has a really positive impact in children," says Alvernaz. "There's several studies demonstrating the connection of what culture can do for a child - for example, increased graduation rates, less likely to become incarcerated."

The Brackeen vs. Bernhardt case challenges past Supreme Court decisions that said being Native American is a political rather than a racial classification.

Alvernaz says the law is important to Native Americans.

"Doing away with ICWA or challenging federal Indian law in general can only have negative and detrimental impacts to Indian people," says Alvernaz, "and especially, Indian children."

Alvernaz also notes ICWA is carried out by state courts. Montana and 21 other states have signed onto the case in support of the law, while four states have joined the case against it.

Eric Tegethoff, Public News Service - MT