ICWA, Baby “Lexi,” and Race
Recently, the Wall Street Journal published an opinion piece by Aditya Dynar and Timothy Sandefur regarding Baby Lexi. Lexi, who is 1.5% Choctaw through her paternal line, was in the foster care system in California. Under the Indian Child Welfare Act, Lexi is required to return to a tribal guardian. Lexi’s Native family lives in Utah. Her foster parents fought the federal government in order to keep Lexi in their care.
Rarely do opinion pieces illicit such a reaction from me. That said, ICWA (from working as a research assistant on Margaret Jacobs’s A Generation Removed: The Fostering and Adoption of Indigenous Children in the Postwar World (University of Nebraska Press, 2015) and Indian land tenure issues (because I grew up on the Nez Perce Indian Reservation) are my button issues.
My letter to the editor (yet to be published) is below:
When Aditya Dynbar and Timothy Sandefur argue that ICWA (Indian Child Welfare Act) is racist, what they really mean is that ICWA prioritizes Indigenous parenting rights over non-Indigenous families. Congress passed ICWA (1978) in response to the thousands of Indigenous children removed from their families and placed into non-Indigenous homes, which effectively removed Indigenous children from their cultural contexts and continued the American practice of forced assimilation. Dynbar and Sandefur argue that Lexi is only 1.5% Choctaw, which obfuscates how tribal kinship works and sanitizes the cultural harm that Indigenous children and families faced prior to Congress passing the legislation. Their piece also elides the fact that Lexi’s foster family broke the child’s anonymity by creating a Facebook page in an effort to garner sympathy and support. Foster care is always temporary. Many states, including California where Lexi’s foster parents live, have laws where relative preference is a priority in child placement. For Indigenous children, relative preference ensures the long-term vitality of Indigenous cultures, including language and customs. Cultural continuity enlivens and strengthens tribal nations and their members, and ICWA safeguards that for future generations. The Indigenous preference inherent in ICWA demonstrates the value of keeping Indigenous children in Indigenous homes. The law upholds Indigenous sovereignty and further cements a nation-to-nation relationship between American Indian Tribal Nations and the U.S. Government. To call this Act racist is the authors’ attempt at further eroding Indigenous sovereignty.