Indian Child Welfare Act of 1978

About ​​​ICWA

"This gold standard doesn't tarnish so easily." —ICWA  supporter

Did you know that only 40 years ago, one-in-three Native American children were taken from their families? Some parents were coerced to give up their children, others were threatened, and still others had their children ripped from their arms. And once removed, most of these children were adopted out to non-Native families, forever disconnected from loving families, rich cultures, and tribal communities.

Native American families were unfairly targeted for breakup—government agencies, unscrupulous adoption agencies, and some religious organizations led the way. Falsely claiming that poverty-stricken families were incapable of raising their children properly, they facilitated an onslaught of efforts to break up Native families and place Native children far from their families and culture.  

Native American families and tribes, desperate to stop the mass removal of their children, demanded that Congress intervene. Recognizing the urgent need to stop the calamitous targeting of Native children and families, Congress responded by passing the Indian Child Welfare Act (ICWA).

Passed in 1978, ICWA is a federal statute governing the removal of an “Indian child” from the home, the termination of parental rights, pre-adoption, and adoption placement procedures. ICWA has a number of important provisions which were created to address the treatment of Native children and families.

For example,
  • The State is required to notify the tribe when an Indian child is taken into foster care.
  • The tribe has the right to intervene and to request the transfer of the case to tribal court.
  • The State must provide what is called “active efforts” to preserve the Indian family.
  • Expert witness testimony must be included in proceedings.
  • Placement preferences designed to keep the child connected to their Native relatives and culture continue for the entire time the child is in the state system, and apply to pre-adoptive and adoptive placements.

The law created these extra steps for state courts to ensure due process for the parents, the tribes, and the children—due process that had been historically and rampantly disregarded. In other words, Congress created different measures for Indian children because Indian children are treated differently, often to devastating consequences.

ICWA applies to specific “child custody proceedings.”  These proceedings are usually non-voluntary (such as foster care placement) or permanent (such as termination of parental rights, pre-adoption and adoption placement procedures). ICWA does not apply in custody disputes stemming from a divorce case. 

In 2016 the Department of Interior, Bureau of Indian Affairs created new federal regulations governing ICWA. These provide additional definitions, timelines, and required judicial findings that must be made on the record in an effort to create more consistency in ICWA implementation. 

Despite today’s misleading headlines, the philosophy behind ICWA is not controversial among child welfare experts and Native families themselves. Taking strong measures to ensure children in the system remain with relatives whenever possible is considered a best practice for all children.

Inflammatory rhetoric by those seeking to overturn ICWA not only sounds eerily identical to the removal campaigns of the 50s, 60s, and 70s, but also disingenuously tries to distract the public from knowing that widespread consensus exists far beyond Indian Country that ICWA is good practice.

Here are just some of ICWA’s supporters.

Casey Family Programs
Child Welfare League of America
Children’s Defense Fund
North American Council on Adoptable Children
Voice for Adoption
National Court Appointed Special Advocate Association (National CASA)
National Association of Social Workers
National Association of Public Child Welfare Administrators
Foster Care Alumni of America

First Focus Campaign for Children
Family Defense Center
Children and Family Justice Center
Black Administrators in Child Welfare
Annie E. Casey Foundation

National Latina/o Psychological Association