Indian Child Welfare Act

GAO Releases ICWA Report

The General Accountability Office released its long-awaited study on the implementation of the Indian Child Welfare Act (ICWA), calling for greater oversight to ensure states are complying with the landmark law. More than two years in the making, the study was requested by House Majority Leader Tom Delay (R-Texas) and two Republicans, including one with jurisdiction over child welfare programs. The lawmakers wanted to know whether the law works as intended -- to give tribes a greater role in decisions affecting the placement of Indian children.

• Highlights
• Abstract
• Full Report

Tribes have long recognized the problems with removal of Indian children from their communities. As many of those children who were raised in boarding schools and non-Indian foster or adoptive homes matured into adults, the voice of lost Indian children was heard around the country. Some national organizations concerned with Indian welfare began addressing this problem in the late 1960’s and early 1970’s. Documentation and testimony presented before Congress compiled a painful and tragic history of the devastating effect governmental policies and actions toward Indian children were having not just on the children themselves, but on the larger tribal communities from which they were taken. As a result of the policies and practices of State social service agencies as well as Federal Indian boarding and mission schools, vast numbers of Tribal children had been raised and educated by non-members and non-Indians. With so many children no longer living with their tribal families and kin, a real threat emerged that the very heart of many tribes’ cultural heritage would be lost or forgotten. For, if kin relations, and the duties, obligations and expectations that surround those relations constitutes the fundamental ways in which tribal customs and traditions are expressed and exercised, what would happen if those kin relations were never learned or experienced by tribal children?

This was precisely what was happening to children removed to boarding schools or non-Indian foster homes. Throughout tribal communities, there was a fear that these policies and practices of targeting Indian children and raising them outside of their cultural heritage would ultimately spell the death of many tribal societies, beliefs, languages and communities.

Over a five-year period, tribes, their allies, and Indian child welfare organizations developed a comprehensive legislative package that would address the practices of states in removing Indian children and placing them in non-Indian homes. An extensive lobbying effort took place and the legislation that eventually passed the U.S. Congress had broad bipartisan co-sponsorship. In 1978, Congress approved the Indian Child Welfare Act of 1978 25 U.S. § 1901-1963, P.L. 95-608, 92 Stat.3069.

In enacting the Indian Child Welfare Act of 1978, 25 U.S.C. §§1901 et. seq., Congress found that “there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children. ...” Congress also determined that states “...often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families. Congress declared:

It is the policy of this nation to protect the best interest of Indian children and to promote the stability and security of Indian Tribes and families by the establishments of minimum federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture.

The Indian Child Welfare Act of 1978 had two overall purposes:

(1) to affirm existing tribal authority to handle child protection cases (including child abuse, child neglect, and adoption) involving Indian children and to establish a preference for exclusive tribal jurisdiction over these cases;

(2) to regulate and set minimum standards for the handling of those cases remaining in state court and in state child social services agencies.

The constitutionality of the Indian Child Welfare Act of 1978 (ICWA) was strongly upheld by the U.S. Supreme Court in Mississippi Choctaw v. Holyfield, 490 U.S. 30 (1989). There have been a series of efforts in recent years to Amend the Indian Child Welfare Act.

The latest federal regulations concerning the Indian Child Welfare Act are available through the Code of Federal Regulations (CFR) - Title 25, part 23. 

There was published in the Federal Register, vol. 44, No. 70/Monday, April 23, 1979 a notice entitled Recommended Guidelines for State Courts-Indian Child Custody Proceedings. This notice pertained directly to implementation of the Indian Child Welfare Act of 1978, Pub. L. 95-608, 92 Stat. 3069, 25 U.S.C. 1901 et seq. A subsequent Federal Register notice which invited public comment concerning the above was published on June 5, 1979. As a result of comments received, the recommended guidelines were revised and are now provided in the document, "Bureau of Indian Affairs Guidelines for State Courts; Indian Child Custody Proceedings."

Indian Child Welfare Act Resources

A Best Practice Approach for Tribal Advocates Working with Native Children who have Suffered Abuse suggests an approach to evaluating the needs of children who enter the child protection system and suggests a context for the evaluation that is culturally consistent with most tribal child rearing philosophies.

A Practical Guide to the Indian Child Welfare Act is intended to answer questions about the ICWA by people of all levels of familiarity with this important law, and to provide a comprehensive resource of information on the ICWA. The Guide, by the Native American Rights Fund, provides an introduction to the ICWA, answers to Frequently Asked Questions, and an appendix of resources -- primary research documents (federal and state laws, regulations, court cases, legislative materials) and secondary research documents (reports, guides, links, bibliographies, forms, and contact information).

Indian Child Welfare Act; Receipt of Designated Tribal Agents for Service of Notice - Federal Register: August 2, 2006 (Volume 71, Number 148) The regulations implementing the Indian Child Welfare Act provide that Indian tribes may designate an agent other than the tribal chairman for service of notice proceedings under the Act, 25 CFR 23.12. The Secretary of the Interior shall publish in the Federal Register on an annual basis the names and addresses of the designated agents. This is the current list of Designated Tribal Agents for service of notice, and includes the listings of designated tribal agents received by the Secretary of the Interior prior to the date of this publication.

National Indian Child Welfare Association (NICWA) has served hundreds of American Indian Nations throughout the country by helping to strengthen and enhance their capacity to deliver quality child welfare services. This site includes:

• About Nicwa
• Get Involved
• Services
• Special Initiatives
• Training
• Technical Assistance
• Online ICWA Course
• Resources
• Library
• Child Abuse Prevention Information
• Information Packets
• Policy & Research
• Legislation
• Existing Law
• Administrative Regulations/Guidelines

The Indian Child Welfare Act - The Need for a Separate Law, by B. J. Jones
The Indian Child Welfare Act (ICWA), which was adopted by Congress in 1978, applies to child custody proceedings in state courts involving "Indian" children--children of Native American ancestry . .

California Indian Legal Services (CILS) has developed two publications on the Indian Child Welfare Act: an online Indian Child Welfare Act (ICWA) Bench Guide for California Judges, and At a Glance:  What Is the Indian Child Welfare Act?

National Indian Law Library has an Indian Child Welfare Section with links to organizations that often post research resources at their web sites.

Wabanaki Legal News, a Newsletter of Pine Tree Legal Assistance, has published Indian Child Welfare Act Update (Questions and Answers).

The Utah Department of Human Services offers a Flow Chart (pdf format) for assistance in determining if the ICWA will apply in a state proceeding.

The Northwest Justice Project (NJP) is a not-for-profit statewide organization that provides free civil legal services to low-income people from eight offices throughout the state of Washington, and has Question and Answers to the Indian Child Welfare Act.

National CASA Association has posted the following information on the Indian Child Welfare Act:

• ICWA Summary
• Amendments to the Indian Child Welfare Act
• Indian Child Welfare Act Handbook (The handbook is available for purchase)
• Link to the text of ICWA
• ICWA, The Need for a Separate Law

Remarks of Kevin Gover, Assistant Secretary-Indian Affairs Department of the Interior at the Ceremony Acknowledging the 175th Anniversary of the Establishment of the Bureau of Indian Affairs September 8, 2000.