Protecting Indigenous Children: The Fight for the Indian Child Welfare Act

The Indian Child Welfare Act is in Danger

Few pieces of legislation are as vital to the health of Indigenous children and their families as the Indian Child Welfare Act. However, this important piece of legislation is currently in danger.

In 1978, Congress passed the ICWA to address widespread state child welfare practices of removing Native American children from their homes and placing them in non-Native families.

What is the ICWA?

In 1978, the ICWA was passed in response to the alarming number of Indian children being removed from homes and placed for adoption, often into non-Indian families. It sets federal requirements for state foster care, guardianship, termination of parental rights and adoption proceedings involving a child who is a member or eligible to become a member of a federally recognized tribe.

The law ensures Tribes are involved in all child welfare decisions, sets placement preferences, and establishes funding for tribal child welfare services. It has been repeatedly challenged and undermined by anti-tribal interests, who have no interest in the best interests of Native children.

The Goldwater Institute’s ICWA work includes supporting the implementation of the ICWA in partnership with tribal and state child welfare systems. We have partnered with more than 50 tribal nations, 59 Native organizations and 31 child welfare orgs, as well as 26 states and DC. We are working to help them strengthen their systems and build better partnerships.

ICWA Preferences

One of the most controversial aspects of ICWA is its placement preferences. These preferences are intended to keep Indian children close to their family, tribe, and culture. This is considered best practice by child welfare experts, and research shows that kids who stay connected to their tribe and culture have better outcomes in life.

To meet these goals, the ICWA requires states to recruit Native American foster and adoptive families, as well as prioritize placements with them. This recruitment is especially important since Native families are far more likely to lose custody of their children than other families.

ICWA also requires states to notify nations, pueblos, and tribes about cases in which their members are involved. This notification is meant to ensure that tribal leaders can play a role in the case and protect their kids. They can be involved in the case by providing expert witnesses and addressing any concerns that may arise. The law also allows them to be a voice in the courtroom and make decisions about the children’s futures.

ICWA Requirements

Before ICWA, Indigenous children were removed from their homes and placed in non-Native foster care. This often resulted in the loss of cultural identity and connection to community. ICWA was passed to prevent this and ensure that Native children stay with their families, tribes and communities.

ICWA requires state child welfare agencies to notify the child’s tribal council when a case is opened and to involve them in the proceedings. It also provides preferences for placement with family members and tribally approved foster homes, and requires that States and Federal courts give full faith and credit to Tribal court decrees.

Despite the need for these provisions, it is not always easy to achieve ICWA compliance and the benefits that are associated with its implementation. Counties are encouraged to use the ICWA toolkit, which is designed to streamline and simplify the achievement of ICWA requirements, improve outcomes for children and families and enhance collaboration with tribes.

ICWA Enforcement

Many state and tribal child welfare systems continue to fail in their responsibilities to comply with the letter and spirit of ICWA. This non-compliance contributes to the high numbers of American Indian children entering foster care.

Several federal cases have challenged the constitutionality of ICWA, including the well-known case, Adoptive Couple v Baby Girl. This case and others have fueled a firestorm of criticism in the media, which often frames ICWA as race-based and draconian.

To overcome these challenges, juvenile and family courts should focus on developing respectful relationships with tribes and engaging in meaningful, ongoing collaboration to examine practice, build understanding through training, and implement change. This toolkit offers juvenile and family court judges a variety of resources for doing just that. This includes a video, benchcard checklists, and training recommendations. These tools are aimed at helping judges and child welfare workers implement the ICWA’s requirements to best serve Native children and families. The full toolkit is available for download below.

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