It is tragic that ICWA is even necessary. However, the reality is that it is not only necessary, but needs to be strengthened. The new guidelines need to be codified & enforced. There should be consequences for deliberately disregarding the provisions of ICWA.
During my time as a foster parent & as a tribal attorney, I have heard numerous district court judges and state child welfare officials express their disdain for ICWA and their clear intention of disregarding it.
In fact, in my oldest daughter's case, we had to take the unconventional step of asking her biological mother to place her with us in a guardianship. This became necessary because, despite no progress on her ISP, even though the child had been in care for three years, OK DHS planned to place the child back into the home. This was over the objection of ICW, which the huge dismissed, with the wave of a hand, calling it merely advisory, since his was not a tribal court. So, in order to keep her out of harms way, her mother consented to a guardianship because even she knew that her home was not a safe place for our daughter.
Fortunately, my Nation's ICW department remained involved and helped us to later complete an adoption so that she could have all the legal protections that entails.
When my daughter's younger sister was born, the county planned to pick the child up at birth, since her sister was already fostered in my home (prior to the guardianship). ICW concurred. The judge refused.
As multiple child welfare referrals came in, ICW continues to request the child be taken into care. Instead she was placed in a "safety plan" with her grandmother, who had been deemed unsafe by the tribe and at least three counties, and who had already served prison time for multiple counts of child endangerment.
Soon after, the grandmother disappeared, moving to the other side of the state. So, there was no supervision and she suffered abuse and neglect for years until, when she was 5, her grandmother was arrested for domestic violence.
Upon taking her into foster care, OK DHS did not notify the Choctaw Nation, as required by ICWA, despite the fact that her case file stated she was Native and would have detailed all of the previous ICW involvement.
I would later be told, by the parents in her initial foster home, that they were told that the plan was to wait to inform the tribe until she had been placed in their home long enough for de facto status, so that they could challenge any proposed placement change. They stated that they were promised an adoption, from the beginning, due to the case history.
As it turned out, I learned of the arrest and contacted ICW to see if she had been taken into care. When ICW located her, we began sibling visits, as the girls had not seen each other in approximately 4 years.
Once the foster family learned that ICW, rightfully, would not guarantee them an adoption due to the early stages of the case, they abruptly asked the she be removed from their home.
So, I was given a spur of the moment choice by OK DHS: take placement or allow her to go to a shelter.
She has been in my home for just over two years, now. If all goes as planned, the adoption should be completed by the end of the year.
The girls now have a younger sister, born a week ago. She is not placed in my home, but I am working with ICW to create relationships with her foster family so that the siblings can have each other in their lives.
If it was not for ICWA my girls would not have each other. The siblings would have been forever separated. If not for ICWA, my daughters would not know their Nation or their culture, as they had both been previously placed with non Native homes who had no desire to learn about, or create relationships with the tribal community.
Without ICWA, Indian Country would have lost the wonderful gift of my daughters and all the potential they hold.
Most importantly, if not for ICWA, my daughters' basic human right to their culture and their tribal family would have been violated. That, in itself, is an act of violence.