Navajo Nation strengthens ICWA protections of Navajo children

(Photo/Navajo Nation Washington Office)

(Photo/Navajo Nation Washington Office)

WINDOW ROCK — The Navajo Nation has developed a streamlined process to determine whether an adoptable Native child is Navajo.

On Oct. 30, Navajo Nation President Buu Nygren signed a memorandum of agreement to expedite Navajo children’s “determinations of tribal membership” for in-state custody cases.

The MOA establishes a process to verify whether a child involved in custody or adoption proceedings is eligible for membership in the Navajo Nation. It was signed by the Navajo Division of Human Resources, Navajo Office of Vital Records and Identification, Navajo Division of Social Services, and the Navajo Nation Indian Child Welfare Act Program.

"This agreement is about protecting our most vulnerable citizens, our children,” Nygren said. “Every day matters for these children and families. Faster verification of Navajo membership will ensure ICWA is fully enforced, and Navajo children can remain connected to their families and tribal heritage."

The eligibility, known as being an "Indian child" under the Indian Child Welfare Act (ICWA), triggers legal protections and the right of the Navajo Nation to intervene in adoption cases.

Currently, the process of verifying tribal membership of children can take several months.

ICWA was passed in 1978 to establish basic requirements to protect Native American children from removal from their homes and communities. The protections are considered essential by tribes given centuries-long attempts to destroy Native peoples through genocide and massacres, forced assimilation, and legalized kidnapping during the boarding school era.

According to the American Civil Liberties Union, before ICWA, approximately one-third of Native American and Alaska Native children were taken from their homes by state welfare agencies and private adoption agencies. As many as 85% of them were placed outside of family or community care with non-Native people.

The new Navajo Nation agreement will shorten the time to determine tribal membership significantly by improving coordination and sharing of records between Navajo Nation divisions and the offices that work with Navajo children in custody, adoption, or foster cases.

The new process will help caseworkers to quickly determine whether ICWA applies. That will allow the Navajo government to exercise its right to intervene sooner in proceedings that involve Navajo children.

Thomas Cody, director of the Navajo Division of Social Services, said the MOA will cut the time from months to weeks to determine the eligibility of a child.

“Once a child gets into the courts, it is hard to bring them back out from under their care and back to the Navajo Nation,” he said. “If they're not within the court system, it’s much easier for us to work with them.”

Cody said the June 2023 U.S. Supreme Court decision in Haaland v. Brackeen was a landmark victory for tribes, tribal sovereignty, Native children and families. In its 7-2 decision, the high court rejected all of the constitutional challenges to ICWA — some on the merits and others for lack of standing.

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