8. Icwa: Years Later

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

On November 18, 2018, forty years will have passed since the Indian Child Welfare Act (ICWA) became binding on all state courts and agencies in this country. Without a doubt, the ICWA has had an impact, but at same time it is certainly true that the expectations of its authors have not yet been fully realized.

When the ICWA was passed in 1978, it was novel in many respects. It required active efforts to keep families together or reunify them and provided for preferred placements with relatives at a time when much of the prevailing attitude was that it was best to remove children from environments that (in the eyes of the larger society) were detrimental to the children. Uprooting such children to entirely new environments and separating them from their larger family was often considered best for the child.

Those perspectives have now been largely rejected. Since 2008, to receive federal funding, all agencies must first seek to identify relative placements, and kinship guardianship is now funded by the federal government.¹ Just as this handbook was being finalized, Congress changed federal law to provide preventive services as part of the Title IV-E entitlement program to keep children with their parents whenever possible.² Indeed, many national child welfare organizations now have endorsed the principles of the ICWA—keeping children with parents whenever possible, placing them with relatives if they must be removed, and maintaining the connection of children with their communities and cultures—as the gold standard in child welfare that should be provided to all children.

In addition, the ICWA has also served as an educational device for many state court judges and social service agencies in this country that ignored or perhaps never paused to reflect on the specific needs of Indian children and their unique circumstances. Many lawyers representing the interests of Indian tribes and parents in ICWA cases will acknowledge that often the key to obtaining a fair application of the ICWA is to educate the judge about why the law exists. Implementing the ICWA supports a broader objective of educating predominantly non-Indian judges about Indian tribes and children in a manner that promotes multicultural understanding and sensitivity.

The ICWA has also played a primary role in strengthening tribal courts and other tribal institutions, thereby increasing the esteem by which those entities are held in the eyes of the tribal and non-Indian community alike. Tribal courts play a critical role in the implementation of the ICWA, and most tribes have accepted this role by enhancing their court systems and social service agencies in a manner that redounds to the benefit of all who interact with those entities. In fact, some tribes, particularly tribes in states subject to Public Law 280, actually resurrected their court systems in response to the enactment of the ICWA, which has led to...