The touchpoint for determining whether ICWA applies is whether the child is an “Indian child” as defined in the Act and whether the proceeding is a “custody proceeding” under the Act. “Indian child” means an unmarried person under the age of 18 who is a tribal member or eligible for membership and is the biological child of a member. (25 U.S.C. § 1903(4)). Determining whether a child has tribal affiliation is not always easy, and, as explained in the 2016 Regulations, may require a thorough and ongoing investigation. Sadly, many child welfare cases are reversed on appeal because of failure to adequately investigate whether the child has Native heritage. “Custody proceeding” includes proceedings for foster care placement, guardianship, parental rights terminations, and preadoptive and adoptive placements. (25 U.S.C. § 1903(1)). Again, although the Act excludes interparental custody disputes, if a parent seeks to sever parental rights, ICWA will apply.
The Act recognizes exclusive tribal jurisdiction for custody proceedings involving Indian children who reside or are domiciled on their tribe’s reservation or are wards of the tribal court. (25 U.S.C. § 1911(a)). Most Indian children, however, live outside of a reservation. For those children, state courts have concurrent jurisdiction over custody proceedings, but transfers to tribal court on request of a parent or tribe must be granted unless a parent objects, the tribe declines jurisdiction, or the court finds good cause to deny transfer. (25 U.S.C. § 1911(b)). Tribes also have a right to intervene in any state court proceeding for foster care placement or termination of parental rights. (25 U.S.C. § 1911(c)).
In voluntary proceedings, ICWA imposes strict requirements to ensure that the parent of an Indian child is aware of the rights being relinquished. (25 U.S.C. § 1913). Family law practitioners must keep in mind that voluntary stepparent adoptions involving an Indian child must comply with ICWA’s mandates for parental consent.
Rigorous standards govern involuntary foster care placement and termination of parental rights, including notice to the child’s tribe and parent, heightened burdens of proof, and other procedural protections. ICWA’s standards are more demanding than the standards applicable to child welfare proceedings in general because of the history of child welfare abuses targeting Native families. Under ICWA any party seeking a foster care placement or termination of parental rights must show that “active efforts” were made to prevent the breakup of the Indian family and that the efforts did not succeed. (25 U.S.C. § 1912(d)). The “active efforts” mandate requires affirmative, thorough, and timely efforts, consistent with the cultural values of the child’s tribe, to maintain or reunite the child with his or her family. (25 C.F.R. § 23.2).
Importantly, ICWA requires a party seeking a foster care placement to show by clear and convincing evidence, including the testimony of qualified expert witnesses, that continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child. (25 U.S.C. § 1912(e)). To terminate parental rights, a similar showing must be made beyond a reasonable doubt. (25 U.S.C. § 1912(f)).
Placement preferences under ICWA aim to keep Indian children with their families and tribal communities. The Act requires that Indian children in an adoption proceeding be placed with extended family, tribal members, or other Indian families unless there is good cause to the contrary. (25 U.S.C. § 1915(a)). A set of different but similar preferences govern foster care placements. Not surprisingly, the determination of whether good cause exists to depart from the preferences continues to drive litigation. While ICWA doesn’t define “good cause,” the 2016 Regulations make clear that good cause must be established by clear and convincing evidence and that socio-economic disparities between a preferred placement and a proposed non-compliant placement are not sufficient reason to depart from the preferences. (25 C.F.R. § 23.132). Of significance for family law attorneys, the placement preferences apply to voluntary private adoptions involving an Indian child, but a birth parent’s request may constitute good cause under certain circumstances.
While ICWA has been controversial since its enactment in 1978, the broadest assault occurred in the closely watched case of Haaland v. Brackeen, 599 U.S. 255 (2023). In Brackeen, the Supreme Court considered multiple constitutional challenges to ICWA brought by foster and adoptive parents, a birth mother, and the state of Texas. The plaintiffs’ primary claims were that Congress lacked authority to enact ICWA, that certain provisions of ICWA unconstitutionally “commandeered” state officials in violation of the Tenth Amendment, and that the placement preferences constituted race discrimination in violation of equal protection principles. The case had the potential of upending longstanding federal Indian law principles, particularly the approach the Supreme Court has followed for decades in determining the constitutionality of laws benefiting tribes and tribal members. (See Morton v. Mancari, 417 U.S. 535 (1974), stating that laws favoring tribal members are classifications based on political association rather than race and therefore not subject to heightened scrutiny).
The Court rejected all of the claims, either on the merits or for lack of standing, and held that the authority of Congress to enact ICWA fell within its broad authority to legislate for Indian tribes, a power that derives from the Indian Commerce Clause and other constitutional sources. The claim that the Act violates the so-called “anti-commandeering doctrine” likewise failed, largely because ICWA applies to private individuals as well as governmental actors. Finally, the Court ruled that neither Texas nor the private plaintiffs had standing to assert equal protection challenges to ICWA and thus left the equal protection claims unresolved.
While the decision in Brackeen put to rest arguments about Congressional power and federal commandeering, equal protection challenges continue in the state courts, particularly challenges by non-Native people seeking to become foster or adoptive parents of Native children. One can’t predict the Supreme Court’s ultimate disposition, but some of the Justices have indicated they would be receptive to arguments that ICWA’s placement preferences in some circumstances could amount to unconstitutional race discrimination. Moreover, now that the Court has abandoned the Chevron doctrine under which courts owed deference to agency discretion and expertise, Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024), opponents of ICWA may challenge the 2016 regulations as going beyond ICWA itself.
While resistance to ICWA continues among some groups, the Act received solid support from the Biden administration. Secretary of Interior Deb Haaland spearheaded efforts to enhance respect for the goals of ICWA, including listening tours to hear testimony about the destructive impact of the boarding school era on Native families and tribal communities. Also, a bipartisan bill to create a federal commission to investigate Indian boarding schools and document the resulting generational trauma is pending in Congress. See S. 1723, Truth and Healing Commission on Indian Boarding School Policies Act. The Trump administration may have a different approach, of course, but positions on ICWA do not necessarily follow typical political alignments.
Moreover, in the last decade more than a dozen states (both Republican and Democrat) have enacted state Indian child welfare laws to reinforce federal protections at the state level. In addition, tribal-state compacts are becoming more common to ensure cooperation in the placement of Indian children and the provision of services to families and tribal communities. Building on that momentum, a drafting committee appointed by the Uniform Law Commission in 2024 is working in collaboration with state and tribal leaders to draft a uniform or model state Indian child welfare act to assist state legislatures in codifying and clarifying the requirements of ICWA.
