Indian Child Welfare Act

views updated May 11 2018


The Indian Child Welfare Act (ICWA), passed by Congress in 1978, intended to limit the historical practice of removing Native American children from their tribe and family and placing them in a non-Indian family or institution (25 U.S.C.A. §§ 1901–1963). The stated purpose of the act is to "[p]rotect the best interests of Indian children and to promote the stability and security of Indian tribes." The act seeks to achieve these goals through three principal methods: by establishing minimum federal standards for when Indian children can be removed from their family; by placing children who are removed in a foster or adoptive home that reflects the unique values of Indian culture; and by providing assistance to family services programs operated by Indian tribes.

The impetus behind the passage of the ICWA was a widespread recognition of the failure of the federal government's historical policy of removing Indian children from their family and tribe and attempting to assimilate them into white culture by placing them in a white family or institution. Since the late 1800s, a large percentage of Indian children had been taken from their home and placed in a boarding school off their tribal reservation in order to teach them white culture and practices. In many cases government authorities removed Indian children from their family because of vague allegations of neglect, when in fact the children's treatment reflected cultural differences in child rearing practices, and not neglect or abuse. In addition, the practice of removing Indian children from their tribe placed the very existence of the tribes in jeopardy.

The ICWA was written with the belief that it was in the best interests of Indian children for them to remain with their tribe and maintain their Indian heritage. To foster this goal, the ICWA enacts minimal federal standards for when Indian children can be removed from their family and seeks to ensure that children who are removed are placed in a foster or adoptive home that reflects the unique values of Indian culture. Examples of these standards include giving custodial preference to a child's extended family or tribal members, requiring remedial programs to prevent the breakup of Indian families, and requiring proof "beyond a reasonable doubt" that continued custody of a child will result in serious emotional or physical harm to the child.

To prevent a resumption of the practice of removing Indian children from their home, Congress, in the ICWA, gave tribal courts exclusive jurisdiction over the adoption and custody of Indian children who reside or are domiciled within their tribe's reservation, unless some federal law provides to the contrary (domiciled refers to a permanent residence while residing may be in a temporary residence). One such contrary law is Public Law 280 (28 U.S.C.A. § 1360). This law made certain tribes in Alaska, California, Minnesota, Nebraska, Oregon, and Wisconsin subject to state jurisdiction. ICWA allows these tribes to reassume jurisdiction over child custody proceedings by petitioning the secretary of the interior.

Tribes also have exclusive jurisdiction over such proceedings when they involve an Indian child who is a ward of the tribal court, regardless of where the child resides. Custody proceedings covered by the act include foster care placement, the termination of parental rights, and pre-adoptive and adoptive placement; the act does not govern custody proceedings in divorce settlements. The ICWA applies both to children who are tribal members and to children who are eligible for tribal membership; eligibility for tribal membership is determined by individual tribes.

In cases involving Indian children who neither reside nor are domiciled within a tribal reservation, tribal courts and state courts possess concurrent jurisdiction. This question of jurisdiction has resulted in several important judicial interpretations of the ICWA. One significant interpretation was the 1989 U.S. Supreme Court decision Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 109 S. Ct. 1597, 104 L. Ed. 2d 29, which declared that because Congress had clearly enacted the law to protect Native American families and tribes, tribal jurisdiction preempted both state authority and the wishes of the parents of the children at issue. The case involved twins born off the reservation to unmarried parents, who voluntarily consented to having the children adopted by a non-Indian family. The Supreme Court ruled that children born to unmarried parents are considered to share the domicile of the mother, and since the mother in this case was domiciled on the reservation, the tribal court had jurisdiction over the placement of the children, even if it opposed the parents' wishes.

In a significant state case, the Minnesota Supreme Court in August 1994 followed the reasoning in Holyfield, rejecting a white couple's petition to adopt three Ojibwa (also called Chippewa or Anishinabe) sisters (In re S. E. G., 521 N.W.2d 357). The court ruled in favor of the Leech Lake band of Chippewa, which had contested the adoption, holding that the ICWA dictated that adopted Indian children should be raised within their own culture. Although non-Indian families may adopt Indian children in very limited circumstances if they prove there is "good cause," the court held that such good cause cannot be based on the European value of family permanence.

In some cases, however, courts have given less weight to the provisions of the ICWA, instead ruling in favor of state jurisdiction over Indian children. In 1995, for example, the Illinois Supreme Court ruled that the ICWA does not mandate exclusive jurisdiction for tribal courts in custody hearings when the location of the children's domicile is in question. In re Adoption of S. S. & R. S., 167 Ill. 2d 250, 212 Ill. Dec. 590, 657 N.E.2d 935, involved two children of an unmarried Indian mother and non-Indian father, who had been living with their father. When the father died, his sister and brother-inlaw sought to adopt the children. The mother's tribe, the Fort Peck tribe in Montana, objected and claimed jurisdiction over the proceeding. The Illinois Supreme Court ruled against the tribe, holding that because the children had never been domiciled on the mother's reservation and because the mother had "abandoned" the children, state law preceded tribal court jurisdiction. The court thus limited the scope of the ICWA in Illinois.

further readings

Bennett, Michele K. 1993. "Native American Children: Caught in the Web of the Indian Child Welfare Act." Hamline Law Review 16 (spring).

Gallagher, Brian D. 1994. "Indian Child Welfare Act of 1978: The Congressional Foray into the Adoption Process." Northern Illinois University Law Review 15 (fall).

Goldsmith, Donna J. 2002."In the Best Interests of an Indian Child: The Indian Child Welfare Act." Juvenile & Family Court Journal 53 (fall): 9–17.

Graham, Lorie. 2001. "Reparations and the Indian Child Welfare Act." The Legal Studies Forum 25 (summer-fall): 619–40.

Hemp, Susan J. 1996. "State Court versus Tribal Court Jurisdiction in an Indian Child Custody Case." Illinois Bar Journal 84 (April).

The Indian Child Welfare Act: A Cultural and Legal Education Program. 1997. Williamsburg, Va.: National Center for State Courts.

Ujke, David M. 1993."Tribal Court Jurisdiction in Domestic Relations Matters Involving Indian Children: Not Just a Matter of Comity." Wisconsin Lawyer 66 (August).


Child Custody; Native American Rights.

Indian Child Welfare Act

views updated May 11 2018


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.


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

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