INDIAN CHILD WELFARE ACT

INDIAN CHILD WELFARE ACT (1978) brought national attention to the removal of American Indian children from their homes and subsequent placement in non-Indian homes. Prior to 1978, a disproportionate number (25 to 35 percent) of all American Indian children were taken from their homes by state social service agencies. Many of the children placed in non-Indian homes experienced loss of their cultural heritage and Indian identity.

The act regulates child custody cases involving American Indian children and shifts decision-making control from state agencies to tribal courts. Where abuse or neglect is substantiated and a child is taken into protective custody, the child is placed under the jurisdiction of the tribe and into the care of his or her extended family or of guardians who are American Indian. The provisions are designed to ensure that American Indian children are placed in homes that respect and understand American Indian cultural values. The act does not address the underlying causes of child abuse and neglect, such as poverty, alcoholism, or unemployment.

The law was challenged in the U.S. Supreme Court case Mississippi Band of Choctaw Indians v. Holyfield (1989). The Court upheld the tenets of the Indian Child Welfare Act in a landmark ruling by reaffirming the right of Indian tribes to retain exclusive jurisdiction in child custody cases.

The special emphasis placed on the role of tribal courts to decide child custody cases contributed to an expansion of tribal courts and social service agencies, and to unprecedented collaboration between tribes and non-Indian officials. Since passage of the act, fewer American Indian children are adopted into non-Indian homes. However, American Indian children continue to be separated from their families at a higher rate than non-Indian children. In many regions, there are not enough American Indian foster families to take in needy children. Funding for the programs, staff, and facilities required to enforce the act continues to be limited.

BIBLIOGRAPHY

Jones, B. J. The Indian Child Welfare Act Handbook: a Legal Guide to the Custody and Adoption of Native American Children. Chicago: American Bar Association, 1995.

Josephy, Alvin M. Jr., Joane Nagel, and Troy Johnson, eds. Red Power: the American Indians' Fight for Freedom. 2d ed. Lincoln: University of Nebraska Press, 1999. The original edition was published in 1971.

Martha L.Chaatsmith