1. The Indian Child Welfare Act and Its Foundations

• Library: The Indian Child Welfare Act Handbook: A Legal Guide to Custody and Adoption (ABA) (2018 Ed.)

Let us put our minds together and see what kind of life we can build for our children.

—Sitting Bull, Hunkpapa Sioux¹

In 1978 the U.S. Congress heeded the call of the great Lakota leader Sitting Bull by passing the Indian Child Welfare Act of 1978, Public Law No. 95-608, 92 Stat. 3069 (Nov. 8, 1978), commonly known as the ICWA (text set out in Appendix A of this handbook). Codified at 25 U.S.C. §§ 1901-1963, the law has had a substantial impact on the practices and procedures of state juvenile courts, state social services agencies, and private adoption agencies in this country.² The law has not been universally welcomed, with some deriding it as an illegitimate usurpation of the traditional powers of state courts and agencies.³ An overwhelming majority of commentators, however, have praised it as requisite to eliminating the practices of state entities that had tended to remove an inordinately large number of Native American⁴ children from their homes without a full appreciation of traditional Native American child-rearing practices.⁵

The ICWA states its purpose as follows:

The Congress hereby declares that 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 establishment 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, and by providing for assistance to Indian tribes in the operation of child and family programs.⁶

Displacement of Indian Children

State Involvement

Before 1978, Congress noted that the wholesale removal of Native American children from their families and tribes by state social services agencies and courts was common.⁷ Surveys by the Association on American Indian Affairs found that in states with large Native American populations an incredible 25 to 35 percent of all Native American children were removed from their homes and placed in foster or adoptive homes at one time in their lives.⁸ In Minnesota, for example, one of every four Native American children under the age of one was adopted, usually by a non-Native American family.⁹ In South Dakota, the number of Native American children in foster care was, per capita, sixteen times greater than the rate for other children.¹⁰ In Washington, the adoption rate for Native American children was nineteen times greater than the rate for other children.¹¹ What makes these statistics even more sobering is that in many of these states the overwhelming majority of Native Americans resided on reservations where ostensibly the state courts and welfare agencies had no authority to order the removal of Native American children.

Federal Involvement

The displacement of Indian children was even more of a national outrage because of the federal government's complicity in carrying out the destruction of Native American families. In 1971, 17 percent of Native American school-age children were removed from their homes to attend Bureau of Indian Affairs (BIA) boarding schools, where they were often isolated from their Native families and instructed by teachers who had very little understanding and appreciation of the children's Native languages and traditions.¹² In many of these boarding schools, children were punished for speaking their Native languages or practicing their religious beliefs.¹³ In others, children were sent so far away from their birth communities that contact between them and their extended families was impractical.¹⁴

Grounds for Removal

Native American children were rarely removed because of physical abuse; instead, their families were routinely judged unfit by non-Native American social workers and judges because of alleged neglect or emotional mistreatment.¹⁵ A common ground for removal was that the natural parent had left the child with an extended relative for a prolonged period of time.¹⁶ To the non-Native American social worker ignorant of the traditional ways of child-rearing such behavior was unacceptable under Euro-American traditions.¹⁷ To Native American families, however, such methods of raising children were common because the notion of extended family included not only those in the nuclear family and blood relations, but also those related by marriage or by some other traditional bond.¹⁸

Another commonly cited ground for removal was the abuse of alcohol.¹⁹ Although alcoholism was, and remains, a problem among Native American families, studies demonstrated that the number of Native American children removed from their homes because of this malady was disproportionate compared to other families afflicted by the disease.²⁰

Removal without Due Process

Compounding the removal problem, in many states Native American children were taken from their families without a modicum of due process.²¹ Many of the children were removed from families dependent on the federal and state governments for financial support.²² Congress documented instances of state welfare agencies pressuring Native American families into signing away custody of their children to the state under threat of the termination of welfare benefits.²³ State welfare departments often controlled the everyday lives of Native American people, and endearing oneself to non-Native American social workers was critical to financial survival.²⁴

The process provided in state courts was no more beneficial than the practices of state social services agencies.²⁵ In most states, parents were provided with neither counsel nor interpreters, even if they spoke only their Native tongues; instead, parents relied on the same social workers who were seeking to displace the children.²⁶ Non-Native American social workers, ignorant of the ways and traditions of the very people they worked with, were the "experts" who advised the courts that the abject poverty many Native American families struggled to confront prevented the families from properly parenting their children.²⁷ Courts rarely received the expert testimony of Native people who could familiarize state judges with traditional child-rearing practices.²⁸ The result was often the judicial countenance of abusive practices of state welfare agencies.²⁹ As stated at 25 U.S.C. § 1901(5), Congress specifically found that "the States, exercising their recognized jurisdiction over Indian child custody proceedings through administrative and judicial bodies, have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families."³⁰

Placement of Indian Children Away from Their Families and Communities and Outside of Their Cultures

In addition to the flawed process by which Native American children were dislodged from their homes, the fate of the children after removal gave Congress pause.³¹ In 1969 a survey of sixteen states revealed that approximately 85 percent of Native American children in foster homes were living in non-Native homes.³² Some 90 percent of nonrelative adoptions of Native children involved non-Native Americans adopting Native children.³³ This led to the alienation of many Native American children from their unique cultural values and mores, a trend that would have continued unabated without intervention by Congress. Psychological and sociological studies have suggested that Native American children brought up in non-Native homes often suffer from a variety of adjustment disorders once they discover their unique ancestral and cultural identity.³⁴ These children have a foothold in the dominant society's world, but eventually long to discover their indigenous roots.³⁵ This longing can result in maladaptive behavior by them, contributing little to either the dominant society or the Native traditions.³⁶

Federal Policy behind ICWA

By 1978, preserving the unique nature of Native traditions and values was more important to Congress than promoting the assimilation of Native people into the dominant Euro-American culture.³⁷ Although this Congressional objective has been subject to unpredictable shifts since the turn of the century,³⁸ an understanding of it as a motivation behind the ICWA is key to understanding certain provisions of the Act. Congress clearly felt that maintaining Native American children in homes that reflect the children's unique Native cultures and values would be in their "best interest."³⁹

During the same period the ICWA was enacted, the federal government was promoting Native American self-determination through a series of legislative enactments, including the ICWA.⁴⁰ At one of the hearings that led to the enactment of the ICWA, Chief Calvin Isaac of the Mississippi Band of Choctaw Indians and representative of the National Tribal Chairmen's Association, spoke of the destructive effect of the "massive removal of their children" on tribal survival and tribal sovereignty.

Culturally, the chances of Indian survival are significantly reduced if our children, the only real means for the transmission of the tribal heritage, are to be raised in non-Indian homes and denied exposure to the ways of their People. Furthermore, these practices seriously undercut the tribes' ability to continue as self-governing communities. Probably in no area is it more important that tribal sovereignty be respected than in an area as socially and culturally determinative as family relationships.⁴¹

Although concerns about involuntary removals by state agencies were a major impetus for the ICWA, it is clear that "voluntary" adoptions of Indian children were likewise of concern to Congress based upon the evidence it considered. Congress recognized that children could be lost through this mechanism, and that there was a great demand for Indian children for adoption and evidence that adoption agencies only rarely utilized Indian families for placement.⁴²

Overview of Provisions of the ICWA

There are both procedural...