When and why was ICWA established?
The Indian Child Welfare Act was established in 1978 in response to a disparate number of Native children entering the foster care system. The common Termination Era ideology that Native children would be better off living with White families served as a catalyst for this mass displacement. At the time, a shocking 75-80% of Native families living on reservations experienced at least one of their children being forcibly removed from their family and community and placed into foster care. Once removed, children were placed in primarily White foster/adoptive homes or residential boarding schools where they would participate in “outing programs,” often never seeing their biological families again.
The traumatic experience of being forcibly removed from their family and culture and forced to assimilate to Whiteness often resulted in children feeling a loss of their cultural identity and connection to their Native heritage. The impact of this loss was devasting for many families, reinforcing a legacy of cultural insensitivity, bias, and systemic oppression amongst power-bearing government agencies and the indigenous peoples of America and Alaska. The need for legislation like ICWA became evident as different Native and ally communities began to rally and protest on their behalf.
In response to this alarming crisis and historical injustice, Congress passed ICWA “to protect the best interest of Indian Children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children and placement of such children in homes which will reflect the unique values of Indian culture… “(25 U.S. C. 1902).
ICWA established specific guidelines and procedures for child welfare cases involving Native children to ensure their protection by:
- Prioritizing the placement of Native children within their extended families, their tribe, or other Native families whenever possible. To help children maintain their cultural ties and connection to their Native heritage.
- ICWA mandates that the state child welfare agencies and courts must make “active efforts” to prevent the breakup of Native families. This means they must provide services, resources, and support to the child’s family to address the issues that lead to child welfare involvement.
- ICWA ensures that a child’s tribe and parents are notified when a child welfare case involving a Native child arises.
- ICWA recognizes the authority of tribal courts in child welfare matters and allows them to be involved in cases involving Native American children from their tribe.
Who does ICWA apply to?
An “Indian child” is any unmarried person who is under age 18 and either:
- A member or citizen of a federally recognized Indian Tribe; or
- The biological child of a member of a federally recognized Indian Tribe and is eligible for membership or citizenship in a federally recognized Indian Tribe. (See 25 C.F.R. 23.2, 23)
The Supreme Court’s most recent decision on ICWA?
Despite the importance of ICWA in the lives of so many indigenous people, it continually faces opposition. In July of 2023, the Supreme Court was confronted with the decision to either uphold or overrule ICWA’s current standing. In a significant decision, the Supreme Court dismissed a legal challenge to the constitutionality of ICWA. With a majority vote of 7-2, the Court affirmed that Congress possessed the authority to pass this law and rejected arguments claiming that it violated the “anticommandeering” doctrine of the 10th Amendment, which prohibits the federal government from compelling states to adopt or enforce federal laws.
This ruling was a tremendous victory for Native families. ICWA can now continue to preserve Native American culture and heritage as it was designed to. Research has shown that maintaining connections with one’s cultural heritage and community can have positive effects on a child’s well-being and development. By prioritizing placement within Native American families and tribes, ICWA aims to provide stability, support, and a sense of belonging for Native American children.
Why does this matter?
Overall, ICWA matters because it recognizes the unique needs and rights of Native American children whose lineage has faced years of historical injustices. It prioritizes cultural preservation and the well-being and stability of Native American families and communities. This comprehensive approach sets a benchmark for other child welfare policies to prioritize and recognize the unique needs of diverse communities, hence why ICWA earned the title of the gold standard for child welfare policy.
Perspectives of a Native adoptee:
“There is not a single Native person alive today who is not either the direct descendant of someone impacted by residential school and forced removal, or themselves have been impacted by forced removal and residential school.”
“For people in my age range, or anyone in their thirties and early forties, even though ICWA was in place when we were children… in terms of it actually working as it was intended to, that is a more recent phenomenon. And it’s a direct product of important advocacy, amplification, and training work that organizations like the Coalition are doing to ensure that communities, decision-makers, and child welfare professionals are trained on it. It’s critical that people know about what ICWA means and how important it is to our [Native peoples’] very survival.”
“The struggles around identity associated with any type of adoption are often exacerbated when you’re a Native child adopted into a White family— especially when so much of our experience and existence is cloaked in invisibility. For many, severed connections to self and community when you’re removed from your family and culture of origin have devastating consequences. I’m lucky to have been placed into a family ultimately supportive of strengthening those connections. Many of my family and friends were not as lucky—and their stories underscore the importance of ICWA.”
— Abby Jackson Smith, Oglala Lakota adoptee, impacted by ICWA