Brief Overview of Indian Child Welfare Act and Department of Interior Listening Sessions

Congress enacted the Indian Child Welfare Act (ICWA) in 1978 as a response to the alarmingly high rate of Native children being separated from their homes and cultural environments. According to congressional findings prior to ICWA’s passing, as many as 25 to 35 percent of Native children in some states were removed from their homes and cultures and placed in non-Native homes away from the reservation. Recognizing that allowing this to continue would ultimately threaten the survival of tribes, Congress determined that tribal governments needed a greater say in decisions affecting Native children and ICWA was enacted into law. Below is brief overview of when ICWA applies and who it applies to.
ICWA applies to Indian Children in certain child custody proceedings. Under ICWA, an “Indian child” is an unmarried individual under the age of 18 who is either a member of a federally recognized tribe or is eligible for membership in a tribe through an enrolled biological parent. Membership requirements vary from tribe to tribe and can include blood quantum or lineal decadency requirements. The BIA Guidelines provide “[w]hen a state court has reason to believe a child involved in a custody proceeding is an Indian, the state court shall seek verification of the child’s status from either the [BIA] or the child’s tribe.” Under the BIA Guidelines, the tribe’s determination of the child’s or parent’s status as a member or the child’s status as eligible for membership is conclusive. In the absence of a tribal determination, the BIA’s determination is conclusive.
ICWA applies in the following types of child custody proceedings:
  • Foster care placement,
  • Any action “resulting in the termination of the parent-child relationship”,
  • A pre-adoptive placement that consists of “the temporary placement of an Indian child in a foster home or institution after the termination of parental rights but prior to or in lieu of adoptive placement,” and
  • An adoptive placement, which refers to the final placement of an Indian child for adoption including any action that results in a final decree of adoption.
Recently, Assistant Secretary Kevin Washburn announced that Department of Interior staff would be re-examining ICWA and the state court guidelines developed by the Bureau of Indian Affairs following the law’s passing. As part of that effort, Interior has held two listening sessions with tribal leaders, as well as a teleconference most recently on April 24. 

The first Listening Session was held at the National Congress of
American Indians 2014 Executive Council Winter Meeting in Washington, D.C. The major themes
were:

  • State ICWA accountability including data collection and reporting to
    the tribes;
  • Tribes and states need to build relationships and work together to
    increase ICWA compliance;
  • Guidelines should recommend best practices including providing birth
    and adoption records to adoptees born prior to 1978;
  • Apply ICWA to all juvenile justice cases;
  • Improve clarity on ICWA abuse and neglect, qualified expert witnesses,
    adoption, termination of parental rights, and guardianships;
  • ICWA training for state courts and strengthening families/parenting
    education for tribal families is needed; and
  • Resources are needed to empower tribal child welfare systems to care
    for their children. 

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