AP NEWS

Preserve the Indian Child Welfare Act

May 5, 2019

Navigating the U.S. child welfare process can be a highly emotional venture. As a judge who works in child welfare I know this better than most. Our end goal will always be to protect children’s best interests and ensure they have the love and support of a family so they flourish as they grow to adulthood. But the process of trying to protect children can be as painful and difficult as it is rewarding.

Because child welfare cases are so complex, a number of laws and legal practices are specifically designed to ensure the best outcomes. Perhaps one of the most highly regarded among these laws has been the Indian Child Welfare Act, or ICWA, which at its core helps keep Native American children within their families, communities and heritage.

As the former president of the National Council for Juvenile and Family Court Judges, I know how ICWA has been crucial in ensuring all factors are taken into account regarding the well-being of a child and in ensuring Native American communities have a seat at the table.

Brackeen v. Bernhardt, a case before the 5th Circuit Court of Appeals, threatens to topple ICWA and place Native American children at risk. I know this risk exists because I have seen with my own eyes how growing up within one’s family and culture nurtures a child. Opponents of ICWA make a number of flawed arguments to back their effort, including fundamental misunderstandings of how foster care and adoption work.

In discussing ICWA, we have to look at history. Before Congress passed the law in 1978, our country was removing children from Native American families at alarmingly high rates. According to Congress, between 25 percent and 35 percent of American Indian children were removed from their family because child welfare agencies did not agree with how they were raised. It was in this environment that ICWA was passed — in the best interests of native children to preserve their cultural heritage and allow the healing of their families and communities.

Today, ICWA sets high standards for every step of the child welfare process. It ensures state courts properly determine a child’s tribal heritage and — to the strongest extent possible — keep the children within their communities to retain their identity and heritage. Research indicates that growing up with a connection to your cultural identity is “linked to higher self-esteem, higher educational attainment, and lower rates of mental health problems and substance abuse.”

Some argue that compliance with the requirements of ICWA takes too much time, but that’s not my experience. I require that ICWA screening is made a routine part of the process and done at the beginning of all my cases, and therefore find that it takes little time to comply with ICWA’s requirements to identify which children are subject to the law. When the law is properly followed, ICWA cases are not drawn out any more than others that appear before my court. In my jurisdiction, we have trained individuals who handle all cases identified as ICWA cases and ensure that this federal law is followed and that the tribe is invited to participate as early and often as possible.

Child welfare is not a process to be rushed, and due diligence is a must when a child’s upbringing is on the line. Opponents of ICWA may point to specific cases they deem unfair, but from what I have seen, ICWA only creates delays or legal conflicts when the law has essentially been ignored and courts or child welfare agencies made no effort to comply until late in the process or after the child has been adopted outside the tribe.

I understand that members of Congress, 325 tribes, 57 tribal organizations, 30 leading child welfare organizations, and 21 attorneys general have filed briefs in Brackeen v. Bernhardt in support of ICWA. There is no political divide here — Democrats, Republicans and the Trump administration all support ICWA and recognize its track record of success.

Take it from someone who sees the benefits of ICWA in her own court. Or take it from the Native American tribes, the people most invested in the well-being of their own children. Or take it from the history books. ICWA supports the best interests of children and our Native American communities, and losing this law would set our country back decades.

Darlene Byrne has served as presiding judge of the 126th Judicial District Court in Travis County since January 2001. She is a commissioner on the Texas Children’s Commission, a past president of the National Council for Juvenile and Family Court Judges, and a past Judge of the Year of National CASA, Texas CASA and CASA of Travis County.