New ICWA Court aims to keep Native families together

By Cheryl Fairbanks, Director of Native American Budget and Policy Institute

I am overjoyed to share with you that the Second Judicial District Children’s Court in Bernalillo County launched a new court to address historic challenges related to compliance with the Indian Child Welfare Act, which was enacted in 1978. Our community has always known, and research shows, that Native children do much better when they stay with their families, extended families, and in their community. That’s why Congress passed ICWA—to help keep Native families together.

This desperately needed court, announced appropriately on Indigenous People’s Day, is meant to uphold the rights of children, families, and tribal communities in a culturally responsive way. It will be reviewing foster care, pre-adoptive, and adoptive placement cases for Native children.  

The Native American Budget and Policy Institute was honored to contribute to the creation of the new court, which was a collaboration of New Mexico’s tribal and state entities. Pegasus Legal Services for Children, New Mexico Kids Matter, Tribal-State Judicial Consortium, New Mexico Tribal Indian Children Welfare Consortium, Corinne Wolfe Center for Child and Family Justice, and the New Mexico Children, Youth and Families Department were also members of the planning team.

Strong families and communities are embedded in indigenous culture. The stronger our community, the healthier are our families and our children. But unfortunately, unnecessary separation of Native families has continued. 

History has shown that Native American children are placed in foster care at a much higher rate than non Indians, ignoring the value of family unification and healing. Even now, social workers often remove children from their homes before exhausting all familial and tribal opportunities for placement. Native families are four times more likely to have their children removed and placed in foster care than their white counterparts. And although progress has been made, out-of-home placements with non-Native homes still occur. 

Structural racism and institutional bias has had a deep impact on how New Mexico’s courts and institutions treat Native families and children both currently and historically. Our communities have been living a continual crisis of cultural annihilation through family separation. 

When Congress passed ICWA, it acknowledged the historic and systemic government policies, like boarding schools, foster care, and adoptions, meant to assimilate Native people and terminate our culture. ICWA was created to protect children’s best interest as well as their cultural heritage. Knowing who they are as tribal citizens and connecting to their families and tribal communities is in the best interest for Native children. ICWA reaffirms the inherent rights of tribal nations to protect their children.

It’s time we upheld and honored that law. ICWA protections are still needed.

In a truly historic moment, the new court helps acknowledge the political status of tribal children and the sovereignty of tribes and Pueblos communities by working government to government with a primary focus on the child and family and preserving culture and communal ties.

The court is led by Honorable Marie Ward, Presiding Judge and Honorable David Eisenberg, Chief Judge of Taos Pueblo Tribal Court. Honorable Catherine Begaye, Special Master, will be the presiding officer over the court. Cases will begin to be heard by January 2020.

Peacemaking Dispute Resolution, which stresses reconciliation over adversarial court processes, will be a culturally responsive option in the court.

The new court will become the sixth ICWA Court in the United States, joining Billings, Montana; Denver and Adams Counties in Colorado; Los Angeles, California; and Duluth, Minnesota.