Q- How has the Indian Child Welfare Act impacted Native American communities and child welfare practices in the United States?

Q- What challenges and controversies have arisen around the ICWA, and how have they been addressed or unresolved?

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The Indian Child Welfare Act (ICWA) was passed in 1978 to end the practice of taking Indian children from their parents by state welfare agencies and state courts. Congress investigated in the mid-1970s and discovered that 1/3 of Indian children had been taken from their homes by state agencies and placed in foster homes, adoptive families or institutions. Most of these residential placements were to non-Indian homes and many were the result of prejudice and ignorance of cultural values on behalf of the state agencies and courts.

ICWA applies to all proceedings terminating parental rights, when there is an Indian child involved. (It does not apply to divorce proceedings). An Indian child is defined as an enrolled member of a federally-recognized tribe, or a child who is eligible to be enrolled and has at least one parent who is an enrolled member. (The books don't include this second criteria - that at least one parent must be enrolled - but this requirement is included in the Indian Child Welfare Act).

ICWA sets forth minimum federal standards for the removal of Indian children from their homes. When children are removed, the act provides for placement in homes that reflect their culture and values. Unless good cause exists, before a child can be placed in a non-Indian home, the court must look to:

1. The child's extended family
2. Other members of the child's tribe
3. Other Indian families

If an Indian child lives on the reservation, the tribal court on that reservation has exclusive jurisdiction over child dependency proceedings. If the child lives off-reservation, the state and tribal court have concurrent jurisdiction - that is, matters can be filed in either court. If a proceeding is initiated in state court, the court must notify the child's tribe and the tribe can intervene. If the tribe or a parent requests that the proceeding be moved to tribal court, the state court must do so, unless there is a good reason not to.

InHolyfield v. Missippippi Band of Choctaw Indians, an Indian couple lived on the Mississippi Choctaw reservation. Both parents were enrolled members of the tribe and the child was eligible for enrollment. The couple decided to give the child up for adoption. The nearest hospital was about 100 miles from the reservation. The woman gave birth at the hospital and the state court accepted jurisdiction over the adoption proceedings. The tribe intervened, claiming that the tribe had exclusive jurisdiction because the parents lived on the reservation. What do you think the court decided?

The trial court (a state court) said that the child never lived on the reservation so the state court had jurisdiction, but the case was appealed to the appellate court level and finally to the U.S. Supreme Court. The Supreme Court said that the state's interpretation didn't make sense. A child resides where the parent resides, so the tribal court had exclusive jurisdiction.

If state court proceedings do not follow ICWA, the tribe, the parents or an Indian custodian can invalidate the court action. Even if the biological parents consent to adoption or foster home placement of an Indian child, and the court doesn't follow ICWA, the tribe can intervene and enforce the act's provisions. The tribe can overrule the wishes of the parents, but the court should always decide in the best interest of the child.

In re Bridget R. 1996was decided in the California Court of Appeals several years ago. An unmarried couple had twin girls and placed them for adoption. They already had two children, aged 1 and 2 at the time. The father was not exactly a father of the year candidate and at the time of the adoption, the mother and children were living in a shelter.

Both parents talked to an attorney about the adoption. The mother, Cindy, was a non-Indian and the father, Richard, initially signed a form stating that he was Indian. The adoption attorney advised him that the adoption would be more complicated because he is an Indian so he signed an amended form claiming that he was Caucasian.

When the adoption proceedings took place, the court did not follow ICWA. The Dry Creek Rancheria of Pomo Indians, the tribe in which the father was enrolled, intervened in the case at the insistence of Richard's mother. Richard and Cindy then withdrew their consent to the adoption and wanted to place the twins with Richard's sister.

Richard had 3/16 blood quantum but lived several hundred miles from the reservation all of his life. Pursuant to tribal customs and traditions he was a tribal member even though his name did not appear on the membership roll. He was born in 1972 and in 1973, the tribe adopted articles of association that included a provision that members were individuals with sufficient blood quantum who submitted an enrollment application and were descendants of those named in a 1915 census. After the adoption proceedings took place, Richard's mother submitted an enrollment application for Richard.

Should ICWA apply?

The court established a new standard known as the "existing family doctrine."

The "existing family doctrine" is a legal principle that is central to the ICWA. The doctrine provides that, when determining the placement of a Native American child who is the subject of a child welfare proceeding, preference must be given to the child's extended family, or to members of the child's tribe, over non-Native foster or adoptive families.

Under the existing family doctrine, if a Native American child is removed from their home, the child welfare agency must first consider placing the child with extended family members, and if that is not possible, with other members of the child's tribe. If a suitable Native American placement cannot be found, the child welfare agency must then seek placement with a non-Native family that is familiar with the child's tribe and culture.

The existing family doctrine is grounded in the principle of self-determination and the recognition of tribal sovereignty. It acknowledges that Native American families and communities have a unique and important role in raising Native American children, and that removing children from their families and communities can have devastating cultural and psychological impacts.

The problem with this doctrine is that non-Indian judges are called upon to decide if Indians have ties to their reservations. One of the factors the courts consider is whether the parent(s) attends Pow Wows - traditional Indian dances - on the reservation, but Pow Wows are not a California tradition. California dancers, who may appear to be traditional, are actually dressing and dancing as if they are from Plains tribes such as fancy dance, women's jingle dance, and men's grass dance. This is just one illustration of the problems inherent in having judges rule about cultural connections that are foreign to them.

What about a case in which the mother is a non-Indian and the father is an Indian, but the parents are not married? In a local case a couple of years ago, a 16-year-old non-Indian became pregnant by a 17-year-old Indian. The couple agreed to place the child up for adoption and selected a non-Indian couple in Texas to raise the child. The biological parents, as well as the adoptive parents, met with the tribal council and the tribal council agreed to the adoption. During the final days of the girl's pregnancy, the tribal council changed its mind and decided that they wanted the child placed with an Indian family. The non-Indian mother did not believe that it was in the child's best interest to be raised by any of the potential adoptive families on the reservation. The young mother and father are no longer together and the mother is now raising the child herself.

In the Adoptive Couple v. Baby Girl case 2013, a South Carolina couple adopted a child who was born to a non-custodial Cherokee father and a non-Native mother. The father, who was not married to the mother, was not informed of the child's birth or the adoption proceedings until four months after the adoption had been finalized. When the father learned of the adoption, he sought to regain custody of his daughter under the ICWA, arguing that the child's Cherokee heritage made her subject to the provisions of the law.

The Supreme Court ultimately ruled that the ICWA did not apply in the case because the father had not established a significant custodial relationship with his daughter before she was adopted, and therefore, he did not have legal standing to invoke the law's protections.

The ruling in Adoptive Couple v. Baby Girl raised concerns among Native American advocates that the decision would undermine the intent of the ICWA by making it easier for non-Native adoptive families to bypass the law's placement preferences and protections. Critics of the ruling argued that it ignored the importance of tribal sovereignty and the unique status of Native American families and communities in raising Native American children.

Although the ICWA was not directly eroded by the decision in Adoptive Couple v. Baby Girl, the ruling did highlight the need for continued advocacy and education around the law's provisions and the importance of preserving Native American families and cultures. It also demonstrated the ongoing challenges in reconciling the interests of Native American communities and non-Native adoptive families in child welfare proceedings.

Adoptive Couple v. Baby GirlLinks to an external site., 570 U.S. ___ (2013), In sum, was a Supreme Court decision that held that several sections of the Indian Child Welfare Act (ICWA) do not apply to Native American (Indian) biological fatherswho are not custodiansof an Indian child. The court held that the procedures required by the ICWA to end parental rights donot apply when the child has never lived with the father.Additionally, the requirement to make extra efforts to preserve the Indian family also does not apply, nor is the preferred placement of the child in another Indian family required when no other party has formally sought to adopt the child (no one but the non-custodial father and the adoptive couple had requested to adopt the child but that may have been due to some misleadings made by the mother). Please click on the link for details.

That brings us to a very important ICWA case that is currently at the Supreme Court that could have further ramifications for Indian sovereignty.

Haaland v. Brackeen 2022 is the lawsuit brought by Texas (and previously Indiana and Louisiana) and several individual plaintiffs, who allege ICWA is unconstitutional. This case has worked its way through the lower courts (federal district court, Fifth Circuit Court of Appeals, Fifth Circuit en banc) and is being reviewed by the U.S. Supreme Court.

In 2018, a federal district court in Texas, in a widely criticized decision, held that ICWA violates the U.S. Constitution.This decisionwas in many ways unprecedentednever before has a federal court found ICWA unconstitutional, and the Supreme Court has consistently rejected arguments that federal Indian statutes violate the Equal Protection Clause or exceed Congress' authority under the Indian Commerce Clause.

Indian Child Protection and Family Violence Prevention Act

Purpose: The purpose of these regulations is to prescribe minimum standards of character and suitability for employment for individuals whose duties and responsibilities allow them regular contact with or control over Indian children, and to establish the method for distribution of funds to support tribally operated programs to protect Indian children and reduce the incidents of family violence in Indian country as authorized by the Indian Child Protection and Family Violence Prevention Act of 1990, Pub. L. 101-630, 104 Stat. 4544,25 U.S.C. 3201 3211.

Policy: In enacting the Indian Child Protection and Family Violence Prevention Act, the Congress recognized there is no resource more vital to the continued existence and integrity of Indian tribes than their children and that the United States has a direct interest,as trustee, in protecting Indian children who are members of, or are eligible for membership in, an Indian tribe. The minimum standards of character and suitability of employment for individuals ensure that Indian children are protected, and the Indian child protection and family violence prevention programs will emphasize the unique values of Indian culture and community involvement in the prevention and treatment of child abuse, child neglect and family violence.

Native American Children's Safety Act (NACSA) (P.L. 114-165)

The Native American Children's Safety Act (NACSA) (P.L. 114-165), enacted in 2016, amends the Indian Child Protection and Family Violence Prevention Act to further ensure children's safety by requiring Indian Tribes to conduct background checks before placing children in foster care. The Bureau of Indian Affairs (BIA) seeks to assist Tribes in complying with NACSA by providing information on how to conduct background checks.