The Indian Child Welfare Act (ICWA) was enacted in 1978 in response to a crisis affecting American Indian and Alaska Native children, families, and tribes. Studies revealed that large numbers of Native children were being separated from their parents, extended families, and communities by state child welfare and private adoption agencies. In fact, research found that 25%–35% of all Native children were being removed; of these, 85% were placed outside of their families and communities—even when fit and willing relatives were available.
Congressional testimony documented the devastating impact this was having upon Native children, families, and tribes. The intent of Congress under ICWA was to “protect the best interests of Indian children and to promote the stability and security of Indian tribes and families” (25 U.S.C. § 1902).
ICWA sets federal requirements that apply to state child custody proceedings involving an Indian child who is a member of or eligible for membership in a federally recognized tribe.
At the time, not only was ICWA vitally needed, but it was crafted to address some of the most longstanding and egregious removal practices specifically targeting Native children. Among its added protections for Native children, ICWA requires caseworkers to make several considerations when handling an ICWA case, including:
- Providing active efforts to the family;
- Identifying a placement that fits under the ICWA preference provisions;
- Notifying the child’s tribe and the child’s parents of the child custody proceeding; and
- Working actively to involve the child’s tribe and the child’s parents in the proceedings.
Because these added protections address not only specific systems abuses directed at Native children—but also their unique political status and cultural considerations—ICWA has been labeled “the gold standard” of child welfare policy by experts and national leading child advocacy organizations far beyond Indian Country. Specifically, the measures ICWA takes to keep Native children in relative care whenever safe and possible have since become a best practice in the wider field of child welfare, and increasingly codified into state and federal law for the wider population.
Although progress has been made as a result of ICWA, out-of-home placement still occurs more frequently for Native children than it does for the general population. In fact, recent research on systemic bias in the child welfare system yielded shocking results. Native families are four times more likely to have their children removed and placed in foster care than their White counterparts. So in spite of the advances achieved since 1978, ICWA’s protections are still needed.
Much of this need can be attributed to non-compliance with the federal law itself. For most of its history, ICWA has lacked an official oversight agency at the federal level, a national data collection apparatus, and an enforcement authority. As a result, compliance with the law has been uneven at best. The 2013 U.S. Supreme Court decision Adoptive Couple v. Baby Girl highlighted the extent to which Congress’s original intent could be interpreted in widely disparate ways.
To address these uncertainties and improve implementation of ICWA, the Bureau of Indian Affairs (BIA) provided additional federal guidance, some for the first time since enactment of the law. In December 2016, the BIA published revised guidelines entitled Guidelines for State Courts in Indian Child Custody Proceedings. These are non-legally binding and were the first revisions since 1979. That same month, the first-ever comprehensive federal regulations addressing ICWA implementation for state courts’ and public and private agencies’ became effective. These regulations provide clarification of many of the key requirements under ICWA and are legally binding.
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