The Indian Child Welfare Act
Today, we are taking a look at the Indian Child Welfare Act (ICWA), a federal law managed by the US Bureau of Indian Affairs. The ICWA was passed in 1978 to counteract the unfair treatment of Indigenous children in state and foster care. The US has a nasty history of forced assimilation programs where Indigenous children were stolen from their families and moved to boarding schools, where they were forced to abandon their Indigenous culture and heritage. Even though these programs have ended, Indigenous families still face cultural ignorance and bias in the foster care system. In a 2013 study, the percentage of children in foster care who were Indigenous was 2.5 times their percentage in the overall population. In some states, that number was up to 14.8 times. The ICWA helps to protect these children, their families, and the Indigenous Tribes in the United States.
The ICWA applies to any non-voluntary state child custody proceeding involving an “Indian child.” A non-voluntary state child custody proceeding is a case where the state has removed or is trying to remove a child from a parent’s home without the parent’s consent, such as a removal for abuse or neglect of the child. The ICWA defines an “Indian child” as any child that is a member of a federally recognized Indian Tribe or the child of a member of a federally recognized Indian Tribe if the child is also eligible for membership. If a child doesn’t meet these qualifications, a Tribe can’t claim the child under the ICWA.
The ICWA controls jurisdiction and puts federal standards on state removal and placement of Indigenous children. In removing a child from a home, a state is required under the ICWA to ask everyone involved in the removal whether they know or think that the child may be an Indian child. If anyone says yes, the state has to reach out to the tribe and find out if it’s true. If so, the rest of the ICWA applies.
The state can only make an emergency removal of an Indigenous child from their home if “imminent physical damage or harm” to the child is expected. The emergency removal can only last 30 days unless the court has been unable to transfer custody to the Tribe, has been unable to have a hearing with the required notice, AND believes that a return would still subject the child to imminent physical damage or harm.
If an Indigenous child lives on a reservation or is a ward of the Tribal court, then the Tribal court has jurisdiction over the child’s removal. If the child doesn’t live on a reservation, whatever court has jurisdiction generally must transfer jurisdiction to the Tribal court if either the Tribe or one of the parents requests it.
If the Tribal court doesn’t take jurisdiction, any time there is a hearing about the child’s removal, the child’s tribe and parents must be notified by registered or certified mail delivered at least 10 days before a hearing. Any hearing to place an Indigenous child in foster care or terminate parental rights must include a qualified expert witness who is not the child’s regular social worker to testify about the prevailing social and cultural standards of the child’s tribe.
The ICWA also requires that the family and the Tribe be involved in any case planning decisions for an Indigenous child in foster care. The state must first try to place an Indigenous child with a member of their extended family, then, if none are available, with a foster home approved or specified by the child’s Tribe, then in a foster home with an Indigenous family or institution run by an Indigenous organization. Only after the state has made diligent efforts to find one of those placements and failed can the child be placed with a non-Indigenous foster home. If an Indigenous child is up for adoption, the state must first look for extended family, then other members of the child’s Tribe, then other Indigenous families before considering a non-Indigenous adoption.
The ICWA, while far from perfect, is an extra layer of protection for Indigenous families who have to deal with the state foster care system. If you are in this situation, an experienced family law attorney can help you protect your rights under the ICWA.
 The ICWA uses the word “Indian” to describe the Indigenous peoples of North America. We have made every effort to use “Indigenous” as much as possible, and any uses of “Indian” are direct references to defined terms as used by the ICWA.