The Indian Child Welfare Act \u2013 How and why it was enacted*<\/p>\n
The Indian Child Welfare Act (ICWA) was enacted in 1978 after an
\n11-year effort spearheaded by the Association on American Indian Affairs and
\nafter relentless political advocacy by national Indian and non-Indian
\norganizations, Tribes, members of Congress, and journalists. President Carter
\napproved ICWA over the objection of the Departments of the Interior, Health,
\nEducation and Welfare, Justice, and the Office of Management and Budget. A
\nnumber of states, however, supported enactment, including Arizona, Arkansas,
\nCalifornia, Georgia, Massachusetts, New Mexico, North Dakota, Oklahoma, Oregon
\nand Washington.<\/p>\n
By the time ICWA was enacted, Indian Tribes had been subjected to
\nseveral hundred years of non-Indian efforts to terminate tribal existence, and
\nas a part of this effort, separated Indian children from their Tribes in order
\nto \u201ccivilize\u201d or assimilate them. In the 30 years immediately preceding ICWA\u2019s
\nenactment, these efforts included the removal of thousands of Indian children
\nfrom their families and Tribes through state court child abuse and neglect
\nproceedings that often targeted Indians applied state laws in discriminatory
\nways and failed to adhere to due process norms. In addition, other thousands of
\nIndian children were \u201cvoluntarily relinquished\u201d for adoption by their Indian
\nparents under circumstances that appeared lawful but where coercion or duress
\nwere the underlying factors. In some extreme cases, Indian children were even
\nkidnapped from their Indian families. In almost every one of these situations,
\nthe Indian children were placed in white foster or adoptive homes. Rarely were
\nthese children returned to their families or tribal communities. By the 1970’s,
\nmany Tribes experienced a 25 percent to 35 percent out-placement of their
\nchildren. We know of at least one Tribe that had 100 percent of its children in
\nfoster or adoptive home.<\/p>\n
Realizing that the destruction of so many of their families threatened
\nthe continued viability of the tribal community, Tribes and their supporters
\nmobilized a national campaign to secure legislation that would protect the
\nintegrity of Indian families and Tribes, understanding that this protection
\nalso promoted the best interests of Indian children.<\/p>\n
It was apparent that state courts had systematically applied state
\nlaws in ways that unnecessarily authorized Indian children to be placed away
\nfrom their families and Tribes. ICWA’s foremost goal, therefore, was to shift the
\ndecision-making authority from state to tribal government. Henceforth, tribal
\nsocial service agencies and courts, applying tribal laws and customs, would be
\nthe primary (if not the only) decision-makers in determining the best interests
\nof Indian children.<\/p>\n
ICWA, however, did not entirely disable state courts from
\napproving Indian child placements. After the enactment of ICWA, state courts
\ncontinued to exercise at least initial jurisdiction over Indian children
\nneither domiciled nor resident within a tribal community. But ICWA changed the
\nground rules of these state court proceedings. It mandated that Tribes be able
\nto participate in the proceedings, including voluntary termination of parental
\nrights and foster care placement proceedings, and by allowing, under certain
\nconditions, for Tribes to permanently transfer the proceedings to tribal court.<\/p>\n
When transfer to tribal court does not occur, ICWA imposes on
\nstate courts certain due process requirements that are often lacking under
\nstate law. For example, in involuntary proceedings, an Indian child cannot be
\nremoved from its parents\u2019 custody unless there is substantial proof that the
\nparents\u2019 activities seriously injured the child. Before this requirement was
\nenacted, Indian parents often lost custody of their children because the
\nnon-Indian authorities did not approve of the parents’ lifestyle or the
\nparents’ culturally rooted, child-rearing practices. In addition, ICWA required
\nthat before a child is removed, services be provided to the family in an effort
\nto avoid removal. This was a novel idea before ICWA. And uniquely significant,
\nICWA requires state courts and agencies to apply tribal law or custom in
\ncarrying out certain ICWA provisions.<\/p>\n
Similarly, in voluntary proceedings, ICWA requires the court to assure
\nthat the consent to placement was truly voluntary, and to make sure that the
\nparents understand their rights, including the right to revoke consent. Prior
\nto ICWA, many states did not even require voluntarily consenting parents to
\nappear in court and explanations of rights were left to caseworkers or others
\nwhose interests were not the same as the parents. This commonly led to
\nmisunderstandings about the nature of legal documents signed and the unexpected
\nand undesired permanent loss of custody.<\/p>\n
While ICWA\u2019s overriding aim is to prevent the placement of Indian
\nchildren, there are obvious situations where placement is unavoidable, even
\nafter all efforts have been made to keep a child with his or her family. In
\nthese situations, ICWA generally mandates that the child be placed in an Indian
\nhome, with extended family having first preference. This requirement applies
\nwhether the child is placed as the result of a voluntary or involuntary
\nproceeding.<\/p>\n
In sum, ICWA prescribes that it is in the best interests of Indian
\nchildren to remain in the custody of their Indian parents or, if necessary,
\nwith other members of their extended family or Tribe and connected to their
\ntribal communities. Any discretion exercised by state judges in conflict with
\nthis definitional component of \u201cbest interests\u201d violates ICWA.<\/p>\n
ICWA fundamentally changed established federal and state policies
\nand practices, and shifted a substantial element of power from states to
\nTribes. Therefore, it is not surprising that ICWA has been attacked. Early on,
\nICWA withstood several challenges to its constitutionality and has been
\ncontinually whittled at on a case-by-case basis. Perhaps the most pernicious
\nchallenges come from courts that have deliberately misconstrued ICWA to find it
\ninapplicable to Indian children who have not been sufficiently connected to an
\nIndian family, or courts that have elevated to a rule the \u201cgood cause\u201d
\nexceptions in ICWA’s jurisdiction transfer and placement preference provisions.<\/p>\n
Despite the decisions by a minority of state and federal courts
\nthat are contrary to ICWA’s express premises, ICWA has achieved its fundamental
\nobjectives. Tribes are able to make decisions involving their children in
\nmultitudes of tribal and state cases. This could not have happened before ICWA.
\nAs a consequence, many Indian children who before ICWA would have been raised
\nin white families have remained with their own families and Tribes. Tribes have
\nalso developed sophisticated social services systems spawned by ICWA. ICWA has
\ncaused a number of state and non-Indian local jurisdictions to develop positive
\nand effective working relationships with tribal agencies and courts. The U.S.
\nSupreme Court has recognized ICWA’s beneficial purposes.<\/p>\n
ICWA appears to be the only national Indian rights legislation
\nbrought about by grassroots Indian advocacy. ICWA\u2019s survival and thriving
\ndepends on constant vigilance by Tribes and their members. It also depends on
\nappropriate action to defeat the venomous attacks still occasionally made
\nagainst this beneficial law by persons who are committed to the termination of
\nIndian Tribes by facilitating the placement of Indian children in white homes.<\/p>\n
* This article, written by Bert Hersch, appeared in the The Indian Child Welfare Act \u2013 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 … Continue reading Indian Child Welfare<\/span>
\nJuly\/August 1998 Pathways<\/em>, a publication of the National Indian Child
\nWelfare Association. It is reprinted by permission of the National Indian Child
\nWelfare Association.<\/p>\n","protected":false},"excerpt":{"rendered":"