ICWA Ruling Will Be Felt for Generations

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By John R. Romero Jr.

November 10, 2022

GUEST OPINION. On November 8, 1978, the U.S. Congress enacted the Indian Child Welfare Act (ICWA). Its passage followed “more than four years of hearings, deliberation, and debate, to alleviate a terrible crisis of national proportions – the ‘wholesale separation of Indian children from their families….’ ” 

Historically, the U.S. has been responsible for protecting and preserving Indian tribes and their resources. In passing ICWA, the clear intent of Congress was to “protect the best interest of Indian children and to promote the stability and security of Indian tribes and families.” 

Congress emphasized the “special relationship” the United States has with Indian tribes and tribal members and that the U.S. has a direct interest, as trustee, in protecting Indian children who are members of, or are eligible for membership in, an Indian tribe. Congress also found “that there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children.” 

Stated differently, Indian children are the heart of the Indian Child Welfare Act.

The oversight and enforcement authority of ICWA was left to state court judges. Consequently, a thorough understanding of the law and the history of Indian people is indispensable if judges are to make the correct decisions in child protection cases involving Indian children.

As a children’s court judge presiding over ICWA cases for more than 17 years, I learned that judicial competence requires knowledge, experience, compassion and empathy that will be lacking if you devote your time to only hearing cases, entering rulings and moving on to the next case. In short, judges and other child protection stakeholders must experience their community away from the courthouse and the office. 

To that end, I accepted an invitation to serve on the New Mexico Tribal-State Judicial Consortium, where state and tribal judges engage in joint efforts to enhance our abilities to serve all litigants and consider and propose revisions to our laws. Our gatherings are frequently conducted in tribal communities and include shared meals and cultural ceremonies with the community’s members.

I was further educated by my participation in the Child Abuse and Neglect Institute presented by the National Council of Juvenile and Family Court Judges. The Institute includes training on the implementation of ICWA and on the history of U.S. policies that included forced assimilation, boarding schools, children’s loss of culture and language, and the inheritance of intergenerational trauma. 

I regularly present on ICWA in statewide training for judges and lawyers practicing and presiding in child and family welfare cases. To develop training and presentations, I research the history of U.S. Indian policy and, when possible, respectfully interview and interact with those who have been touched by their involvement in child welfare proceedings. 

Collaboration, cooperation and mutual respect among stakeholders in the child welfare system are essential ingredients in producing positive outcomes for child safety, connection to culture and family preservation. However, in the past, our state systems have failed to meaningfully collaborate or partner with tribal communities whose members are directly impacted by the child protection system. 

Fortunately, we are beginning to experience the successes of ICWA Courts where tribal involvement assists and supports Indian families in protecting children and keeping families together safely. Finally, tribally led changes in state laws based on the lived expertise of tribal workers, tribal leadership, and affected families have led to improved outcomes in child-custody proceedings involving Indian children. New Mexico’s recently passed Indian Family Protection Act (IFPA) is an example of promising legislation.

For 44 years, the Indian Child Welfare Act has been considered the gold standard in child welfare policy. But, importantly, ICWA has been the law of the land to protect and preserve the continued existence of Indian tribes and their most vital resource – Indian children. 

Yesterday, on Nov. 9, 2022, the first day of ICWA’s 45th year, the U.S. Supreme Court began hearing arguments on whether to continue ICWA as the “gold standard” or to reduce it to rubble. The court’s ruling will be consequential and will be felt for generations.

The Honorable John Romero, Jr. is a retired presiding judge of the Children’s Court Division of the Second Judicial District Court in Albuquerque, N.M., and a past president of the National Council of Juvenile and Family Court Judges.