Abolition, Settler Colonialism, and the Persistent Threat of Indian Child Welfare

Abstract

Family separation is a defining feature of the U.S. government’s policy to forcibly assimilate and dismantle American Indian and Alaska Native (AIAN) tribal nations. The historical record catalogues the violence of this separation in several ways, including the mass displacement of Native children into boarding schools throughout the 19th century and the widespread adoption of Native children into non-Native homes in the 20th century. This legacy eventually prompted the passage of landmark legislation known as the Indian Child Welfare Act of 1978 (ICWA). ICWA introduced federal protections against the unnecessary removal of Native children and affirmed the role of the tribe as an important partner in child welfare proceedings. To what extent has the federal government honored the commitments of ICWA and reversed the trajectory of Native family separation since 1978? What can be done to reduce the threat of the current child welfare system on the well-being of Native families?

In this Article, we use administrative and historical data to statistically evaluate the magnitude of change in AIAN family separation since the passage of ICWA and locate the institutional pathways that funnel AIAN families into the child welfare system. We find that, despite long-standing treaty responsibilities to support the health and well-being of tribal nations, AIAN children remain at incredibly high risk of family separation. In particular, we find that the frequency of AIAN children’s placement into foster care has remained relatively stable since the passage of ICWA and that the post-investigation removal decision by child welfare agencies is a key mechanism of inequality in family separation. We situate these findings within theories about settler colonialism and Indigenous dispossession to illustrate that the continuous removal of Native children from their homes is not an anomaly. Instead, we argue that the very intent of a white supremacist settler-state is to dismantle Native communities. Based upon these findings, we argue that the child welfare system in its entirety must be abolished in order to stop the routine surveillance and separation of Native and nonWhite children from their families by the state. We suggest that ICWA has provided, and will continue to provide, a necessary intervention to protect Native families so long as this intrusive system remains. We conclude by envisioning an abolitionist approach that immediately redirects social and financial resources into the hands of Native families and works cooperatively with tribal nations to promote Indigenous communities of care.