Indian Child Welfare Act

The Indian Child Welfare Act of 1978 (ICWA) ((Pub.L. 95–608, 92 Stat. 3069, enacted November 8, 1978), codified at 25 U.S.C. §§ 1901–1963) is a Federal law that governs jurisdiction over the removal of Native American (Indian) children from their families. ICWA gives tribal governments a strong voice concerning child custody proceedings that involve Indian children, by allocating tribes exclusive jurisdiction over the case when the child resides on, or is domiciled on, the reservation, or when the child is a ward of the tribe; and concurrent, but presumptive, jurisdiction over non-reservation Native Americans' foster care placement proceedings. ICWA was enacted in 1978 because of the disproportionately high rate of forced removal of Indian children from their traditional homes and essentially from American Indian cultures as a whole. Before enactment, as many as 25 to 35 percent of all Indian children were being forcibly removed, mostly from intact American Indian families, and placed in non-Indian homes, with a deliberate absence of American Indian cultures. In some cases, the Bureau of Indian Affairs (BIA) paid the states to remove Indian children and to place them with non-Indian families and religious groups. Testimony in the House Committee for Interior and Insular Affairs showed that, in some cases, the per capita rate of Indian children in foster care was nearly 16 times higher than the rate for non-Indians. If Indian children had continued to be removed from Indian homes at this rate, tribal survival would be threatened. It also damaged the emotional lives of many children, as adults having been through the process testified. Congress recognized this, and stated that the interests of tribal stability were as important as the best interests of the child. One of the factors in this judgment was that, because of the differences in culture, what was in the best interest of a non-Indian child was not necessarily what was in the best interest of an Indian child, especially as they have traditionally larger extended families and tribal relationships in their culture. As Louis La Rose (Winnebago Tribe of Nebraska) testified: Congress recognized that four primary factors contributed to the high rates of Indian child removal. These were 1) 'a lack of culturally competent State child-welfare standards for assessing the fitness of Indian families; 2) systematic due-process violations against both Indian children and their parents during child-custody procedures; 3) economic incentives favoring removal of Indian children from their families and communities; 4) and social conditions in Indian country.' Various other groups have also had stakes in these decisions. The Church of Jesus Christ of Latter-day Saints (LDS Church) had an Indian Placement Program that removed Indian children from their tribes and into church members homes. By the 1970s, approximately 5,000 Indian children were living in Mormon homes. The Lack of knowledge about American Indian culture by most social workers also contributed to the high removal rates. Most social workers are conditioned by the 'best interest of the child' as outlined by Beyond the Best Interests of the Child (Second Edition), which advocates bonding with at least one adult as a parent figure. This did not take into consideration the tribal culture of the extended tribal family, in which children could have close relationships with extended family. Common American Indian practices of having a child cared for by an extended relative was viewed as abandonment by allegedly well-intentioned but arguably paternalistic social workers. But tribal members considered this normal behavior and a desirable way to ensure the child was cared for by family. During congressional consideration, held at the request of Native American advocacy groups, opposition was raised by several states, the LDS Church, and several social welfare groups. The bill was pushed through by Representative Morris Udall of Arizona, who lobbied President Jimmy Carter to sign the bill. It was strongly supported by Senator James Abourezk of South Dakota, who had authored the bill and previously contributed to founding the American Indian Policy Review Commission and the Select Committee on Indian Affairs, each of which he chaired.