The Indian Child Welfare Act of 1978 (ICWA, enacted November 8, 1978 and codified at Indian Child Welfare Act, (, )) is a United States federal law that governs jurisdiction over the removal of American Indian children from their families in custody, foster care, and adoption cases.
ICWA acknowledges tribal governments' exclusive jurisdiction over children who reside on or are domiciled on a reservation, or are existing wards of a Tribal court. It gives concurrent, but presumptive jurisdiction over foster care placement proceedings for Native American children who do not live on the reservation. It was enacted to respond to the disproportionate removal of Indigenous children from Tribal communities and the resulting threat to the survival of Native American culture.Linjean, Meschelle; Weaver, Hilary N. (2023-10-20). "The Indian Child Welfare Act (ICWA): Where we've been, where we're headed, and where we need to go". Journal of Public Child Welfare. 17 (5): 1034–1057. doi:10.1080/15548732.2022.2131696. ISSN 1554-8732.
Overview of ICWA
General ICWA gives tribal governments a strong voice concerning child custody proceedings that involve Native children, by allocating tribes exclusive jurisdiction over the case when the child resides on, or is domiciled on, the reservation, or when the child is a ward of the tribe; and concurrent, but presumptive, jurisdiction over non-reservation Native Americans' foster care placement proceedings.Indian Child Welfare Act,
History ICWA was enacted in 1978 because of the disproportionately high rate of forced removal of Native children from their traditional homes and essentially from Native American cultures as a whole. Surveys by the Association on American Indian Affairs conducted in 1969 and 1974 indicated that between 25 and 35 percent of Native children in states with a large Native American population were being removed, usually forcibly, mostly from intact Native American families with extended family networks, and placed in predominantly non-Native homes, which had no relation to Native American cultures.Johnson, Troy R. (1999), "The State and the American Indian: Who Gets the Indian Child?," 14 Wicazo Sa R. 197 (University of Minnesota Press) In some cases like the Indian Adoption Project, the Bureau of Indian Affairs (BIA) paid the states to remove Native children and to place them with non-Native families and religious groups.Lowe, p. 352
Three executive departments, twenty states, 22 non-Indian private organizations, 35 Indian organizations, and 38 Indian Tribal nations provided testimony in the House Committee for Interior and Insular Affairs. These testimonies showed that, in some cases, the per capita rate of Native children in foster care was nearly 16 times higher than the rate for non-Natives.H. Rep. No. 95-608, 95th Cong., 2d. Sess. (1978), reprinted in 1978 U.S. Code Cong. & Ad. News 7530, 1978 CIS H443-53 The tribes said that such removal demonstrated lack of understanding by child welfare workers of the role of extended families in tribal culture, and threatened tribal survival by removing children at such a high rate. The process also damaged the emotional lives of many children, who lost touch with their people and culture, as adults testified who had been through the process."Understanding The ICWA | Indian Child Welfare Act Law Center". Retrieved 2024-12-05. Congress recognized this, and stated that the interests of tribal stability were as important as the best interests of the child.Josephy, p. 124 One of the factors in this judgment was a recognition that, because of the differences in culture, what was in the best interest of a non-Native child was not necessarily what was in the best interest of a Native child. The latter traditionally have larger extended families and tribal relationships in their culture.Jones, The Indian Child Welfare Act Handbook, p.12-13.
Louis La Rose (Winnebago Tribe of Nebraska) testified:I think the cruelest trick that the white man has ever done to Indian children is to take them into adoption court, erase all of their records and send them off to some nebulous family ... residing in a white community and he goes back to the reservation and he has absolutely no idea who his relatives are, and they effectively make him a non-person and I think ... they destroy him.Wilkinson, p. 258-260Calvin Isaac (Choctaw Tribal leader) testified:One of the most serious failings of the present system is that Indian children are removed from the custody of their natural parents by non-tribal governmental authorities who have no basis for intelligently evaluating the cultural and social premises underlying Indian home life and child rearing. Many of the individuals who decide the fate of our children are, at best, ignorant of our cultural values and, at worst, have contempt for the Indian way and convinced that removal, usually to a non-Indian household or institution can only benefit an Indian child.Congress recognized that four primary factors contributed to the high rates of Native child removal by states. These were 1) "a lack of culturally competent State child-welfare standards for assessing the fitness of Indian families; 2) systematic due-process violations against both Indian children and their parents during child-custody procedures; 3) economic incentives favoring removal of Indian children from their families and communities; and 4) social conditions in Indian country."81 Fed. Reg. 38780 (June 14, 2016)_
Various other groups have also had stakes in these decisions. The Church of Jesus Christ of Latter-day Saints (LDS Church) had an Indian Placement Program that removed Native children from their tribes and placed them into church members' homes. By the 1970s, approximately 5,000 Native children were living in Mormon homes. The lack of knowledge about Native American culture by most social workers also contributed to the high removal rates. Most social workers are conditioned by the "best interest of the child," as outlined by Beyond the Best Interests of the Child (Second Edition), which advocates bonding with at least one adult as a parent figure.Goldstein, p. 53 This did not take into consideration the tribal culture of the extended tribal family, in which children could have close relationships with members of the extended family. The common Native American practices of having a child cared for by an extended relative was viewed as abandonment by allegedly well-intentioned, but arguably paternalistic, state social workers. But tribal members considered care by an extended family member to be normal behavior and a desirable way to ensure the child was cared for by family.Jones, The Indian Child Welfare Act Handbook, p.3-7.
During congressional consideration, held at the request of Native American advocacy groups, opposition was raised by several states, the LDS Church, and several social welfare groups. The bill was pushed through by Representative Morris Udall of Arizona, who lobbied President Jimmy Carter to sign the bill. It was strongly supported by Senator James Abourezk of South Dakota, who had authored the bill and previously contributed to founding the American Indian Policy Review Commission and the Select Committee on Indian Affairs, each of which he chaired.Suzette Brewer, "War of Words: ICWA Faces Multiple Assaults From Adoption Industry" , Indian Country Today, 8 July 2015; accessed 9 June 2016
Indian child removal is one example of a broader trend promoting Native American assimilation, particularly through the targeting of Indigenous children. Other instances include Indian boarding schools and the Save the Babies campaign.Theobald, Brianna. Reproduction on the Reservation: Pregnancy, Childbirth, and Colonialism in the Long Twentieth Century. 1st ed. Chapel Hill: The University of North Carolina Press, 2019. These movements all focused on separating Indian children from their Tribal communities, preventing the generational transfer of cultural practices.
Congress's overriding purpose in passing the ICWA was to protect Native culture and tribal integrity from the unnecessary removal of Native children by state and federal agencies. Awareness of the issues facing Native American children was raised by the advocacy and research by the Association on American Indian Affairs. Congress reasoned that "there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children."Indian Child Welfare Act,
Legal challenge In October 2018, in the case Brackeen v. Zinke, Federal District Court Judge Reed O'Connor struck down parts of the law as unconstitutional, claiming that it mandated racial preference. In December 2018, the United States Court of Appeals for the Fifth Circuit ordered that O'Connor's judgment be stayed, holding that it violated tribal sovereignty. On August 9, 2019, the court ruled that the law does not violate equal protection. On November 7, 2019, the court voted to rehear the case en banc. The ICWA remained in effect. In 2022 the case was heard by the Supreme Court, who upheld the constitutionality of the law in June 2023 (see Haaland v. Brackeen).
Jurisdiction
Minimum standards ICWA sets minimum Federal standards for nearly all Native child custody proceedings, including adoption, voluntary and involuntary termination of parental rights, and removal and foster care placement of Native children, but excluding divorce and child delinquency proceedings. ICWA provides that state courts have no jurisdiction over the adoption or custody of Native children residing within their own tribal reservation.Canby, p. 196 An "Indian child" is "any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe."Indian Child Welfare Act,
ICWA applies to a "child custody proceeding" involving a Native child. The term "child custody proceeding" involves: (i) "foster care placements," where the child has been placed in a foster home, and the parent cannot have the child returned upon demand, but where parental rights have not been terminated; (2) terminations of parental rights; (3) "preadoptive placements," which means placing the child in a foster home after the termination of parental rights, but before or instead of an adoption; and (4) adoptions.
ICWA does not cover child custody hearings during divorce proceedings. Nor does ICWA cover cases of child delinquency when the child has done something that would be considered a crime if done by an adult. Because Native tribes play a major part in the upbringing of Native children, which is significantly different than that of the parents, the ICWA gives important jurisdictional powers to Native tribes in order to preserve the Native culture and tribal future. Tribal courts hold either exclusive jurisdiction or concurrent jurisdiction dependent on several factors.
Exclusive tribal jurisdiction Under ICWA, a Native tribe has exclusive jurisdiction over a Native child who resides or is domiciled within the tribe's land. This includes both reservation land, other tribal lands that are held in trust by the Federal government for the benefit of a tribe or individual, or held by a tribe or individual subject to a restriction by the United States against alienation. The last two describe tribal lands such as those in Oklahoma that were transferred to individual Natives under various laws. The Native tribal courts also have exclusive jurisdiction over Native children who are wards of the court or tribe, regardless of their location.