INDIAN CHILD WELFARE ACT
What is the Indian Child Welfare Act (ICWA)?
ICWA was enacted in 1978 due to the disproportionately high rates of forced removal of Indian children from their homes and culture. Before the law was enacted 25-35% of all Indian children removed from their homes were forced into non-Indian homes. This had an impact on the community, threatening tribal survival. The law was to govern the removal of Indian children from their homes, giving Tribal governments a voice in proceedings. ICFPP advocates for the consortium tribes in these proceedings, working diligently on keeping the children safe, families and culture enact.
How is ICWA used now?
Native children are removed from their homes at 2-3 times the rate of their white counterparts and are often not placed with relatives or other Indian families, even when such placements are available and appropriate. In private adoption systems where little regulation is present, Indian children can face practitioners who focus on financial incentives or are operating from narrow understandings of the what the law requires. Native families are the most likely to have children removed from their homes first resort, and the least likely to be offered family support interventions intended to keep the children within the home.
Myth 1: ICWA was overturned in Adoptive Couple v. Baby Girl
False. This decision did not overturn ICWA. ICWA still remains law, and still applies to private adoptions and child welfare cases. However, the decision limited ICWA's protections for unwed fathers without custody when their children are voluntarily placed for adoption and changed how ICWA's placement preferences are applied in voluntary adoptions.
Myth 2: ICWA is a raced-based law.
False. ICWA, like other federal Indian legislation, is based on the unique political status of tribes and Indian people, not race. This status - established by Congress, the Constitution, statutes, and treaties - has been affirmed and reaffirmed by U.S. Supreme Court decisions for 200 years.
Myth 3: ICWA applies in divorce proceedings and custody battles between two biological parents.
False. ICWA only applies in child welfare proceedings and adoption proceedings.
Myth 4: ICWA applies to all children who identify as Native American.
False. ICWA covers any child who is either a member of a federally recognized tribe/Alaska Native village or is eligible for membership in a federally recognized tribe/Alaska Native village and is the biological child of a member of a federally recognized tribe/Alaska Native village.
Myth 5: ICWA ignores the best interests of Indian children.
False. ICWA is designed to promote the best interest and unique needs of the Indian child. ICWA is not just considered good practice for Native children by experts and practitioners, but the principles and processes ICWA embodies were recently described by 18 national child welfare agencies as the "gold standard" for all children.
Myth 6: ICWA favors Indian family members over non-Indian family members.
False. Nowhere in ICWA does it indicate placement preferences or favor placement with a Native relative over placement with a non-Native relative.
Myth 7: ICWA only requires efforts to protect Indian children after they are removed from their home.
False. ICWA requires something called "active efforts". This means that the state must work closely with the family to ensure they receive any services necessary before a child is removed to prevent removal from the home, or - if removal was necessary - they receive services and support so that the child can be safely returned.
Myth 8: ICWA applies only to involuntary proceedings.
False. ICWA was designed to also protect Indian children in voluntary proceedings. While some of the provisions of ICWA do not apply in voluntary proceedings, many important provisions still apply, including those provisions that speak specifically to procedures for voluntary adoptions and foster care placement.
Myth 9: ICWA funnels Indian children into placements on reservations that are bad places for children.
False. ICWA has no such requirements regarding reservations. Unfortunately, issues of child abuse and neglect - and the need to place children into foster care that result - are a nationwide problem, and not relegated to any specific community. In fact, NPR recently reported that when it comes to child maltreatment, "statistically, tribes are no different from many other communities nationwide".
Myth 10: ICWA was important in the 1970s but is no longer needed now.
False. ICWA still provides much-needed protections for Indian children and families. Statistics tell us that Indian children today face many of the same issues as when ICWA was enacted.
More ICWA information
National Indian Child Welfare Association (NICWA)