Abstract
Federal Indian policy is rooted in family regulation. Here, family regulation is twofold, comprising: (1) the idea that American Indian families should be curated to be more like their non-Indian counterparts; and (2) the child welfare system, as Dorothy Roberts notes. Overall, family regulation was part of an Indian assimilation project. Since the late nineteenth century, assimilationist tactics encouraged the wholesale removal of Indian children, first to boarding schools, and later to adoptive placements. After decades of abusive family regulation practices, Congress enacted the Indian Child Welfare Act of 1978 ("ICWA") to prevent the breakup of Indian families and promote tribal sovereignty. This Article argues that, in addition to the expressed congressional goal of protecting Indian families, ICWA is a tool of reproductive justice. Beyond the right to abortion, reproductive justice includes the right to have a child, the right to not have a child, and the right to raise a child in a safe and healthy environment. By implementing procedural guidelines to protect Indian family decision-making and child-rearing from state agencies that were, and are, often too eager to promote the settler colonial project, ICWA is a positive disruption of the settler colonial project that defends the reproductive autonomy of American Indian people. As a symbol of the disruption of both historic and contemporary efforts to regulate Indian families through a colonial project that defined families through assimilation, and regulated those it could not, ICWA remains a good policy. Yet, ICWA is under attack like other reproductive rights and the rights of Indian tribes as sovereigns. As such, this Article provides a framework for reproductive rights and explains where ICWA-and more specifically, the needs of American Indians-fit into this framework. Because ICWA does not exist without other attacks on the reproductive autonomy of American Indians and tribal sovereignty, this Article examines the attendant history of the settler colonial project leading up to ICWA, as well as ICWA's goals and mandate, along with what it means to discuss ICWA as a tool of reproductive justice. While opponents frame their attacks on ICWA as a need to "save" Indian children and place them with the "best" families possible, the attacks on ICWA symbolize the ongoing attempts to regulate Indians by eroding their reproductive rights and autonomy.