That’s because the Spirit Lake Sioux Tribe had invoked their powers under the Indian Child Welfare Act (ICWA) to place the children on the reservation.

Congress passed ICWA in 1978 to alleviate a national crisis, the wholesale separation of Indian children from their families. But in attempting to right a wrong, Congress created a new threat to the safety and well-being of Indian children. It established a weaker set of protections for Native American children and subordinated their best interest to that of the tribe.

The problem with ICWA begins with how it defines an “Indian child.” Any child who is either a member of an Indian tribe or is eligible for membership in a tribe, and is the biological child of a tribe member, is considered an Indian child.family being the first choice for both foster care and adoption. For an adoption, the second choice if a member of the extended family is unavailable is other members of the child’s tribe and the third choice is other family members.

This makes it easy for tribes to take children away from adoption-minded foster families that may have raised them from infancy.

ICWA is often used to override the preferences of one or both parents about who will raise their child. In 1985, twin babies were born to Choctaw parents living on a Mississippi reservation. The parents drove 200 miles to give birth, hoping to escape tribal court jurisdiction, and chose a non-Indian adoptive family. The tribe brought the case to the Supreme Court, which upheld the jurisdiction of the