The article we are sharing this month addresses the Conclusion of the preceding articles that have been presented from “Tribal Child Welfare Codes as Sovereignty in Action” developed by the Native Nations Institute and NICWA.
Conclusion
Tribal child welfare laws and codes present tribes with an opportunity to enact the sovereignty that they claim, and to do so in a critical area of tribal life: the care and protection of their children. Especially since the passage of ICWA, which formally recognized tribes’ inherent jurisdiction over child custody proceedings involving member children, a large number of tribes are taking advantage of that opportunity, claiming and exercising jurisdiction over their children’s welfare. Importantly, because ICWA provides for transfer jurisdiction and in some circumstances requires that state courts defer to tribal child welfare law, tribal code writing can also be a way to affect state action involving Native American children.
Tribes are strengthening their governance over child welfare in diverse ways. Some have developed child welfare codes that largely replicate the codes of the states where those tribes are located. Others – although only a minority – are pushing against the norms of mainstream child welfare systems by, among other things, redefining the family, putting responsibility for reporting abuse or neglect on the community as a whole, creating alternatives to removal and the termination of parental rights, and introducing cultural considerations into “the best interest of the child.”
Overall, however, cultural considerations were used inconsistently or only rarely in the codes reviewed in this study. This is an area where tribes may wish to push further, recognizing that their own cultural understandings and practices can play a key role in the success of their child welfare systems and in the long term health and safety of their children.
Many tribal communities have technical experts (for example, tribal judges, lawyers, social workers, and community leaders) who understand current tribal child welfare policies and practices. They know the challenges, they know what works, and they understand the financial considerations involved. Their expertise will assist in creating strong and meaningful child welfare codes. But the success of child welfare codes may depend as well on those citizens of native nations who are culture-bearers and understand the key role that Native cultures can play in child welfare. Through a community engagement process, their expertise on community values, traditional culture, and current needs can be gathered and put to use.
