The Indian Child Welfare Act has faced numerous constitutional challenges in federal courts since its enactment in 1978, attempts to undermine tribal nations’ authority in child welfare matters

Jane Harstad gave birth in 1986 to her first child, a son. Soon after, a pediatrician asked for her family’s medical history. She didn’t have a clue. She didn’t know who her biological mother or father was, let alone what medical conditions they had.

Harstad, who is Red Cliff Band of Lake Superior Chippewa, was adopted shortly after birth through Catholic Charities adoption services in 1965. The agency placed her in a white, middle-class family living in St. Paul, Minn.

After obtaining her biological mother’s address through the adoption agency, Harstad sat down to write a letter. She felt immediately overwhelmed.

“It took me a long time, you know, days or weeks [to write]. Even the first word like, ‘Hello,’ or ‘Dear Mom,’” she said. “It took a long time to carefully choose my words.” Harstad provided her phone number in the letter and said she wanted to meet her mother.

Harstad, now 56, would later reflect on that moment: “I was searching for a part of myself that was missing, and I knew she was the answer whether it was good or bad or ugly. It was like a puzzle and you’re missing one piece. You’re just never going to be complete.”

American Indians like Harstad continue to be separated from their biological families and placed with non-Native families, often fracturing connections to their heritage. Stories from adoptees speak to the irreparable harm such separations can have on families. What’s more, the emotional and physical trauma caused by separations reverberates across generations. They stretch back to centuries of forcible displacement and cultural genocide experienced by American Indian communities at the hands of the U.S. government.

Yet, disparities in the child welfare system persist and separations from birth families continue to affect families. In Minnesota for example, American Indian made up 21 percent of children in foster care in 2018, but less than 2 percent of the state’s population — by far the highest disparity in the nation.



Harstad’s adoption was processed in 1965, over a decade before the enactment of the Indian Child Welfare Act. This federal law mandates that states place Native American children in foster care with families of the same tribe as often as possible. The act goes beyond placement-preference statutes by including additional steps courts and state agencies must take both before removing children from their biological homes or completing court proceedings. State agencies must abide by ICWA to honor tribal nations’ sovereignty, preserve families and prevent cultural erasure.

Since its enactment in 1978, the Indian Child Welfare Act has faced numerous constitutional challenges in federal courts in an attempt to undermine tribal nations’ authority in child welfare matters. Foster care cases involving Native American children are approached differently under ICWA in part because the U.S. government engaged in the decades-long practice of forcibly separating Native American families and placing children with white families.

According to a statement released by the National Congress of American Indians, 31 child welfare agencies consider the act a “gold standard” that works in the best interests of Indian children. But state courts still fail to properly apply ICWA in cases with eligible American Indian children. Even with the act in place, only about half of Native children in foster care in Minnesota find Native homes, according to the Minnesota Department of Human Services.

The stories of adoptees in Minnesota who underwent family separation highlight the silenced generations of adults who must confront their complicated pasts and build their own spaces to heal.

A long, buried history

Soon after sending a letter to her mother in 1986, Harstad received a call.

“This is your mom,” the voice on the phone said.

Her stomach dropped. “Uh, hi?” Harstad said.

Harstad maintains direct eye contact and a matter-of-fact demeanor when she speaks, harkening back to her days as a teacher corralling a classroom of students. But her voice takes a softer tone as she recalls her biological mother’s voice.

“It was really overwhelming, because what do you say, where do you start, how do you finish?” she said.

Harstad eventually set up a time to meet her mother at a powwow in northern Minnesota. After that, she slowly worked to build a relationship with her mother over the years while doing her best to heal. But she’s quick to note that countless other adoptees still search for answers.

“There are so many adoptees out there who are lost and don’t know what to do,” she said. “There are people who don’t even know they are American Indian.”

As a state with 11 tribal nations and a large urban American Indian population, Minnesota is often perceived as relatively progressive when it comes to upholding the rights of tribal nations. But numerous accounts from Native adoptees and advocates demonstrate that the state still has a long way to go in confronting its long, troubled history of family separation.

The Child Welfare League of America, with the complicity of the Bureau of Indian Affairs and the U.S. Children’s Bureau, instituted the Indian Adoption Project from 1958 to 1967. This decision came at the heels of the forcible placement of American Indian children into boarding schools beginning in the 1860s.

The government continued to rip American Indian children away from their tribes and families and then placed a vast majority of them in non-Native foster or adoptive homes. According to a 1976 survey commissioned by the Association on American Indian Affairs, 25 to 35 percent of American Indian children were removed from their families between 1941 and 1967 — that’s a third of all American Indian children.

After years of organizing by Indigenous communities, Congress passed the Indian Child Welfare Act in 1978. The government recognized that an “alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies.” The law takes a step toward remediation of past wrongs and sets statutes that agencies must abide by to respect tribes’ rights to self-determination in matters of child welfare.

Despite having saved countless families from undergoing separation, the law still cannot erase harm already done. Adoptees, such as Harstad and so many others, continue to seek ways to heal from the history of massive removals and forced assimilation.

Adoptees and community members circle the Minneapolis American Indian Center auditorium following the grand entry of adoptees at the “Gathering for our Children and Returning Adoptees” powwow. Jingle dress dancers dance to heal the emotional wounds of returning adoptees. (Photo: Camille Erickson.)

Child removals increasing in Minnesota

Child removals continue to this day. Based on Minnesota’s Child Welfare Report of 2017, Native children in Minnesota experience the highest rates of removal by state officials. They’re 18.5 times more likely to experience out-of-home care than white children, according to the Minnesota Department of Human Services.

DHS Commissioner Tony Lourey said he was aware of the disparity. DHS and other public agencies “take protecting children seriously and are making improvements to secure the best possible outcomes for children,” Lourey said in a statement. “Disparities for American Indian children and families are alarming and must be addressed to ensure the system works for everyone.”

According to Lourey, DHS recently expanded its ICWA unit to build the state’s capacity to support American Indian families in the child welfare system. But he also said, “we have much more to do.”

The number of American Indian children in foster care has grown by 88 percent — almost two-fold — since 2000, according to recent data obtained from DHS.

Minnesota’s Governor Tim Walz proposed a new legislative agenda that would dedicate $8.2 million in 2020 fiscal year and $18.6 million in 2022 fiscal year to an American Indian Child Welfare Initiative. The initiative, approved in 2005, seeks to expand tribal child welfare services by gradually transferring responsibilities from the county to tribal governments, like Mille Lacs Band of Ojibwe and the Red Lake Nation. The goal is to ensure American Indian children receive culturally relevant care.

“We continue to work with our county and tribal partners on strategies to support struggling families, keeping in mind existing child welfare disparities,” said Lourey. “We believe in building on the strengths of communities.”

“I don’t feel safer here” The need for a cultural connection

As a self-assured, successful adult, Jasmine Grika, Cheyenne River Sioux/Red Lake Band of Ojibwe, carries both professional experiences working in the child welfare sector and personal experience navigating the foster care system as a child. Her sparkling eyes carry wisdom beyond her years.

Hennepin County child protection services removed Grika at 6 years old from her biological mother’s care for a short-term emergency placement at St. Joesph’s Home for Children in Minneapolis.

The state placed Grika in her first foster home after concluding that her mother needed treatment and housing before caring for her daughter again. Grika does not have fond memories of her first foster home, which she called a “non-ICWA” home, or a home with non-Native parents.

Child welfare professionals often point to the severe shortage of qualified Native American foster families as the main factor contributing to children’s placement in homes outside of their tribes.

According to data from DHS, 1,952 American Indian foster children in Minnesota were placed in non-Native homes in 2018. That’s nearly half of all-American Indian children in the foster care system in the state. But there are consequences to separating Native children from their culture, as Grika’s story shows.

As she settled into her first foster home away from her mother, she remembers thinking: “I don’t feel safer here. And I feel zero affection. Zero. There was no sign of love anywhere, at least toward me.”

Not until years later, after Grika’s caseworker matched her at 10-years-old with a White Earth Ojibwe adoptive mother, did Grika recognize the importance of having a culturally relevant home.

“I realized the difference in my mood and my mental and emotional well-being,” she said. “I felt like I belonged somewhere and instead of feeling shame for who I was, I could understand why I was different from other kids.”

In her new home in Minneapolis, Grika’s adoptive family immersed her in cultural activities. She went to powwows, received a jingle dress to dance in, and attended water ceremonies and sweat lodges.

Jasmine Grika (center) stands with her colleague from Ain Dah Yung Center (left) and her mother (right) at the "Indigenous Women Have Always Been Leaders" event in Minneapolis. Photo courtesy Jasmine Grika.

“I advocate for the Indian Child Welfare Act because I realize the impact it had on me as soon as my culture was brought into my life,” she said.

An act under attack

But the Indian Child Welfare Act faces unprecedented attacks in the state and federal courts. On Oct. 4, 2018, U.S. District Judge Reed O'Connor in Northern Texas dealt a blow to ICWAby ruling that parts of the statute and regulations were unconstitutional.

One year prior, the Brackeens, two non-Native foster parents, petitioned the court to make an exception and allow the couple to circumvent ICWA regulations and adopt a Native American foster child.

The court denied their petition. ICWA requires that preference be given to Native American relatives before the Brackeens. The 2-year-old child’s biological mother and father are enrolled members of the Navajo Nation and the Cherokee Nation, respectively.

But the Texas attorney general subsequently filed a federal lawsuit challenging the constitutionality of ICWA. In December 2017, families in other states (including Minnesota), joined the lawsuit.

Judge O’Connor ultimately ruled that the law discriminated on the basis of race to the detriment of the child’s well-being. ICWA "coerces state agencies and courts to carry out unconstitutional and illegal federal policy, and decide custody based on race,” O’Connor stated.

U.S. law considers tribal nations to be sovereign nations, which means they have the right to self-govern and determine what would be in the best interest of their own members, including in matters of child welfare. As Tracy Rector, an Indigenous media activist and artist, noted in a recent Washington Post op-ed, “being Native is not a racial designation — it’s a political, community and familial designation.”

Critics often misconstrue ICWA as a race-based law when in fact the act recognizes “the special relationship between the United States and the Indian tribes” as noted in Congressional findings around the act. Tribes have the ability to intervene in child welfare cases involving children enrolled, or eligible for enrollment, in their respective tribe.

“I think there is a lot of misunderstanding about the law,” Grika said. “People think that it is a racial policy and law when really it is a government-to-government relationship.”

The National Indian and Child Welfare Associations cautioned that this new precedent set by O’Connor’s ruling could undermine the constitutionality of other federal tribal laws.

“It’s super unfortunate that we just celebrated the 40th anniversary of ICWA and now this is happening,” Grika said.

A need for Native American foster families

In the meantime, American Indian organizations continue to fight for healing and cultural belonging in the foster care system. To many advocates, that means increasing the number of culturally relevant and Native American foster care homes.

Grika now brings her personal experience to her work at Ain Dah Yung Center, an emergency shelter serving runaway or homeless American Indian youth. Set on a tranquil residential corner in St. Paul, the sturdy brick house keeps its doors open to youth day and night.

Ain Dah Yung means “Our Home” in Ojibwe and promises youth safety and culturally competent care. In 2017 alone the organization provided 49 young people with shelter.

Grika works with American Indian families as they navigate the child welfare system. She considers herself “a bridge” between the local county and American Indian families affected by child protection services.

Over tea in South Minneapolis just blocks from her adoptive family’s home, she mapped out the efforts she led at Ain Dah Yung Center. With her long hair pulled back into a ponytail, Grika leaned into the wooden table and shared her mission to build a better future for Native youth who, just like her, had to navigate the foster care system.

A significant part of her job involves recruiting more Native foster parents. That way, youth in foster care can stay connected to their culture when receiving out-of-home care. Last year, she organized a child welfare workshop to give interested adults the guidance and encouragement they needed to apply for a foster care license with the county.

But there’s still a long way to go and challenges abound.

Grika considers background checks — or the misinformation about background checks — to be one factor inhibiting the growth of more Native foster parents. Some families assume that their criminal record will disqualify them from being approved as foster care providers, she said. But in particular instances, applicants can have their records expunged, or the state might make an exception on a case-by-case basis.

Over at the Minnesota Indian Women’s Resource Center, ICWA Kinship Worker Gary Smith adds another layer of support for families facing the child protection systems. He said a family’s home might not be approved if it lacks something as simple as a fire extinguisher. With warm, caring eyes and gentle gestures, Smith said he helps American Indian families navigate these strict requirements, even buying them fire extinguishers, battery-operated alarm clocks, beds, car seats or other items they need to have before caring for foster children.

Smith fights to increase culturally relevant homes because he knows first-hand the consequences of severing Native youth from their heritage. His father was raised as an adoptee with a non-Native, Christian family on a farm in Wisconsin.

After a difficult childhood, his father did not explore his identity as a Native adoptee until decades later, Smith said. At that time, Smith was a teenager and remembers the “heartbreaking” stories his father told. “It’s had a profound effect on him,” he said.

But Smith and other advocates point to an even more insidious problem within the child protections system: some state workers lack awareness of American Indian culture. They fail to take into consideration the historical legacies of separations when investigating or creating case plans for families, he said.

This lack of awareness can impact decisions and only exacerbates a longstanding distrust of state agencies justifiably held by many Native families.

“It comes down to cultural competency,” Smith added. “These young workers don’t understand our communities. They see Native families and they don’t know how we raise our kids, how our households run or how we just help each other out.”

In the eyes of these advocates, professionals need to be educated and aware of the significance of ICWA and American Indian culture before becoming involved in child protection cases.

Creating healing spaces

Despite these challenges, Native American adoptees continue to lead a resilient fight both inside and outside the child welfare system to address disparities, often by providing support systems and advocates beyond what county or state governments offer families. And Native-led organizations hold the government accountable, ensuring that agencies and courts properly uphold ICWA and honor tribal sovereignty.

Sandra White Hawk, Sicangu Lakota, is an intrepid advocate for American Indian adoptees. White Hawk wears her hair in salt-and-pepper braids alongside intricately beaded earrings. “It’s vital that our children know who they are,” she said.“Not knowing who you are has a grave, negative psychological effect on you, on the development of your self-esteem, your dignity and the pride of who you are.”

She knows firsthand the severity of separation for Native American families. Born in 1953, she was removed from her biological family at just 18 months and adopted by a white, missionary family.

Conversations about the trauma caused by forcible removals and assimilation remain buried under a veil of silence, she said. “Since the separation of our families in boarding schools and then through adoption and foster care, we had no time to grieve,” White Hawk said. “We had no opportunity to come together.”

As an elder, she now devotes her energy to mentoring fellow adoptees beginning their journey home to their culture. In 2003, she started an annual powwow and ceremony, called the Gathering for our Children and Returning Adoptees, to provide a space for Native adoptees to reconnect with their heritage in Minneapolis.

On Nov. 3, 2018, hundreds of families converged at the Minneapolis American Indian Center for the annual powwow. Dancers adorned in vibrant regalia entered the auditorium to the hum of songs and the ring of jingle dresses. Drums circles lined the perimeter of the open space. Families and friends gathered in the bleachers, exchanging greetings and life updates. Here, participants could heal collectively among fellow adoptees.

As community members arrived at the powwow, White Hawk gathered upstairs in a circle with adoptees, birth relatives, and adults who went through foster care. About a dozen adoptees shared how they arrived at the pow wow. Some, like Harstad, had been coming for years, while other adoptees, like Michael Pintozzi, had just found out about their Native American heritage that year. Some attendees had never had the opportunity to attend a powwow or connect with the American Indian community.

Following the morning gathering, the powwow began with the entrance of the color guard. This grand entry signaled the spiritual celebration’s beginning. Adoptees and formerly fostered relatives followed in their stead, in a ceremonial return.

Later in the afternoon, a Wablenica ceremony opened with prayer and song. During the ceremony, elders welcomed returning adoptees “back into the circle.”

White Hawk said the ceremony can be full of grief at the beginning. But by the end, the adoptees stand in the circle and the community comes forward to embrace them.

“Our hearts are just lifted,” White Hawk said. “Some people have never heard the phrase, ‘welcome home,’ and it makes them feel the acceptance and sense of belonging that is so needed for our people.”

Camille Erickson is a Master's of Science candidate at Northwestern University. She created this report as part of an investigative grant.

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