Indian Child Welfare

The Indian Child Welfare Act – How and why it was enacted*

The Indian Child Welfare Act (ICWA) was enacted in 1978 after an
11-year effort spearheaded by the Association on American Indian Affairs and
after relentless political advocacy by national Indian and non-Indian
organizations, Tribes, members of Congress, and journalists. President Carter
approved ICWA over the objection of the Departments of the Interior, Health,
Education and Welfare, Justice, and the Office of Management and Budget. A
number of states, however, supported enactment, including Arizona, Arkansas,
California, Georgia, Massachusetts, New Mexico, North Dakota, Oklahoma, Oregon
and Washington.

By the time ICWA was enacted, Indian Tribes had been subjected to
several hundred years of non-Indian efforts to terminate tribal existence, and
as a part of this effort, separated Indian children from their Tribes in order
to “civilize” or assimilate them. In the 30 years immediately preceding ICWA’s
enactment, these efforts included the removal of thousands of Indian children
from their families and Tribes through state court child abuse and neglect
proceedings that often targeted Indians applied state laws in discriminatory
ways and failed to adhere to due process norms. In addition, other thousands of
Indian children were “voluntarily relinquished” for adoption by their Indian
parents under circumstances that appeared lawful but where coercion or duress
were the underlying factors. In some extreme cases, Indian children were even
kidnapped from their Indian families. In almost every one of these situations,
the Indian children were placed in white foster or adoptive homes. Rarely were
these children returned to their families or tribal communities. By the 1970’s,
many Tribes experienced a 25 percent to 35 percent out-placement of their
children. We know of at least one Tribe that had 100 percent of its children in
foster or adoptive home.

Realizing that the destruction of so many of their families threatened
the continued viability of the tribal community, Tribes and their supporters
mobilized a national campaign to secure legislation that would protect the
integrity of Indian families and Tribes, understanding that this protection
also promoted the best interests of Indian children.

It was apparent that state courts had systematically applied state
laws in ways that unnecessarily authorized Indian children to be placed away
from their families and Tribes. ICWA’s foremost goal, therefore, was to shift the
decision-making authority from state to tribal government. Henceforth, tribal
social service agencies and courts, applying tribal laws and customs, would be
the primary (if not the only) decision-makers in determining the best interests
of Indian children.

ICWA, however, did not entirely disable state courts from
approving Indian child placements. After the enactment of ICWA, state courts
continued to exercise at least initial jurisdiction over Indian children
neither domiciled nor resident within a tribal community. But ICWA changed the
ground rules of these state court proceedings. It mandated that Tribes be able
to participate in the proceedings, including voluntary termination of parental
rights and foster care placement proceedings, and by allowing, under certain
conditions, for Tribes to permanently transfer the proceedings to tribal court.

When transfer to tribal court does not occur, ICWA imposes on
state courts certain due process requirements that are often lacking under
state law. For example, in involuntary proceedings, an Indian child cannot be
removed from its parents’ custody unless there is substantial proof that the
parents’ activities seriously injured the child. Before this requirement was
enacted, Indian parents often lost custody of their children because the
non-Indian authorities did not approve of the parents’ lifestyle or the
parents’ culturally rooted, child-rearing practices. In addition, ICWA required
that before a child is removed, services be provided to the family in an effort
to avoid removal. This was a novel idea before ICWA. And uniquely significant,
ICWA requires state courts and agencies to apply tribal law or custom in
carrying out certain ICWA provisions.

Similarly, in voluntary proceedings, ICWA requires the court to assure
that the consent to placement was truly voluntary, and to make sure that the
parents understand their rights, including the right to revoke consent. Prior
to ICWA, many states did not even require voluntarily consenting parents to
appear in court and explanations of rights were left to caseworkers or others
whose interests were not the same as the parents. This commonly led to
misunderstandings about the nature of legal documents signed and the unexpected
and undesired permanent loss of custody.

While ICWA’s overriding aim is to prevent the placement of Indian
children, there are obvious situations where placement is unavoidable, even
after all efforts have been made to keep a child with his or her family. In
these situations, ICWA generally mandates that the child be placed in an Indian
home, with extended family having first preference. This requirement applies
whether the child is placed as the result of a voluntary or involuntary

In sum, ICWA prescribes that it is in the best interests of Indian
children to remain in the custody of their Indian parents or, if necessary,
with other members of their extended family or Tribe and connected to their
tribal communities. Any discretion exercised by state judges in conflict with
this definitional component of “best interests” violates ICWA.

ICWA fundamentally changed established federal and state policies
and practices, and shifted a substantial element of power from states to
Tribes. Therefore, it is not surprising that ICWA has been attacked. Early on,
ICWA withstood several challenges to its constitutionality and has been
continually whittled at on a case-by-case basis. Perhaps the most pernicious
challenges come from courts that have deliberately misconstrued ICWA to find it
inapplicable to Indian children who have not been sufficiently connected to an
Indian family, or courts that have elevated to a rule the “good cause”
exceptions in ICWA’s jurisdiction transfer and placement preference provisions.

Despite the decisions by a minority of state and federal courts
that are contrary to ICWA’s express premises, ICWA has achieved its fundamental
objectives. Tribes are able to make decisions involving their children in
multitudes of tribal and state cases. This could not have happened before ICWA.
As a consequence, many Indian children who before ICWA would have been raised
in white families have remained with their own families and Tribes. Tribes have
also developed sophisticated social services systems spawned by ICWA. ICWA has
caused a number of state and non-Indian local jurisdictions to develop positive
and effective working relationships with tribal agencies and courts. The U.S.
Supreme Court has recognized ICWA’s beneficial purposes.

ICWA appears to be the only national Indian rights legislation
brought about by grassroots Indian advocacy. ICWA’s survival and thriving
depends on constant vigilance by Tribes and their members. It also depends on
appropriate action to defeat the venomous attacks still occasionally made
against this beneficial law by persons who are committed to the termination of
Indian Tribes by facilitating the placement of Indian children in white homes.

* This article, written by Bert Hersch, appeared in the
July/August 1998 Pathways, a publication of the National Indian Child
Welfare Association. It is reprinted by permission of the National Indian Child
Welfare Association.

Peskotomuhkati Motahkomikuk