Nez Perce Boarding School from the Idaho State Archives

You’ve probably never heard of this federal law: The Indian Child Welfare Act. The main reason I know about it was I had a sister who helped craft and defend it. She is long dead, but I remember the lessons she taught me.

The law has come before our now conservative activist court. It will most likely be struck down, given how that body has been manipulated by our US Senate. But you need to know about the law.

ICWA was passed by congress in 1978. At that time about a third of native children in state custody were adopted into non-native families. Tribes and many others argued the cultural existence of our Native Americans was being decimated by such practice. The law said that the priority for states to consider for the placement of native children should be with native family or tribal members.

I won’t burden you now with residential schools and the policy our county has had with regards to the people we stole this land from. But taking children from one family and placing them in another has worked for millennia to dissolve defeated cultures and strengthen the victors. ICWA was an attempt by congress to preserve the cultures of our native populations.

But I was a medical resident working in the pediatric ICU. We had an abused native child, beaten by someone on the reservation, here for his third stay with repeated brain damage. I said to my Indian law lawyer sister Sande, “Why can’t he just go to a good home? Why does he have to go back there?”

She heard my racist undertone, my ignorance, my bias. And she quietly shook her head and responded in her moderate and measured way, “You just don’t understand.”

And I didn’t then. I do now. I wish she was alive to hear me say this.

A few times on the Idaho Senate floor obscure laws would come up for consideration, and it would be telling when the Majority Leader would carry them and explain them to us. Senator Bart Davis did this occasionally. I remember a couple that had to do with the Health and Welfare provisions about foster care or adoption. He always made a point of saying these changes to Idaho Code we were considering were consistent with ICWA. I wondered about that.

Back in 1978 when ICWA was before congress, one of the opposing factions was the LDS church. They had a program in place at that time that took native children from their homes and placed them in LDS homes. This practice conformed to their church ideology. I have never discussed this with Bart. But I sensed he thought the Federal law should be respected and upheld.

As we face the dismantlement of many comfortably held ideas that prior Supreme Courts have found in our Constitution, it will be up to the states to consider whether we wish to enshrine these ideas in our state statutes or constitutions. The list will become long if the pace of this activist court is sustained. Are we Idahoans up to the task?

Senator Davis is a devout Latter Day Saint. He has profound knowledge of the law, his church, and the history of the native peoples in our state. Does he think the principles of ICWA should be in our statutes? Do you?

Is the preservation of the cultures we have displaced worth our effort? I doubt any newly elected Idaho legislator has this issue on their to do list. It is worth our consideration. I wish Sande could be here to guide me. I think I know what she would say.

About ddxdx

A Family physician, former county coroner and former Idaho State Senator
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