January 01, 2017

About this Issue

Shanna Knight

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

Never in the history of the Indian Child Welfare Act1 (ICWA) has there been much guidance on ICWA’s implementation as today. In the last two years, the federal government has released two sets of guidelines (in 2015 and 2016) and the first comprehensive set of binding federal regulations since ICWA’s enactment. Those regulations became effective last month. Recognizing these important developments in the child welfare field, this CLP issue focuses on ICWA, including the new regulations. It offers multiple perspectives on how judges, attorneys, and child welfare agencies throughout the country can better understand and use ICWA effectively to improve the lives of American Indian and Alaska Native children and their families. 

ICWA: History and Importance 

Congress enacted ICWA in 1978 in response to evidence that Indian families commonly faced unwarranted removal of their children—so much so that during that time at least 25% of all Indian children were being placed out of home, with 85% of those children being placed in non-Indian homes or institutions.2 Indeed, even beyond the statistics that led Congress to pass ICWA in 1978, the federal government’s history of targeting American Indian children for assimilation and separating them from their families and culture stretches back over 100 years before ICWA’s enactment. 

Historically, the federal government passed laws and carried out campaigns seeking to eradicate tribal culture, including natural helping systems that tribes had used successfully for hundreds of years to protect their children. These efforts included forcibly removing children from their families, placing them in military-style boarding schools hundreds of miles from their families, and attempting to assimilate them into the dominant culture by using harsh discipline and emotional abuse. 

In addition, the federal government worked with private and religious organizations to carry out the Indian Adoption Project in the 1950s and 1960s, through which hundreds of American Indian and Alaska Native children were adopted by non-Indian families with little or no consideration for their tribal connections or extended family ties. 

When Congress passed ICWA in 1978, it sought to recognize tribes’ rights as sovereign governments to protect their citizens, including their children. ICWA also ensures states consider tribal values; empowers tribes to serve their children and families; counterbalances bias in people and state systems; expands resources available to Indian families; and protects the best interests and unique rights of American Indian and Alaska Native children as tribal members. 

Although ICWA became law almost 40 years ago, the effects of child removal policies and practices still reverberate within American Indian and Alaska Native communities. For example, American Indian and Alaska Native children are still disproportionately represented in state foster care systems, sometimes at rates as high as 12 times their population rate in some states.3

As a result, ICWA’s heightened procedural and substantive due process provisions remain critical. These provisions ensure: 

  • agencies work to keep a family together and reunify a family if the child is removed, 
  • the state meets higher evidentiary standards before a child can be removed from home, and 
  • the state identifies placements with extended family or community members that serve the best interests of Indian children. 

As expressed in a recent amicus brief to the U.S. Supreme Court, many national child welfare organizations recognize ICWA’s protections are “the gold standard” for child welfare practice for all children.4

This Issue

This month’s CLP issue contains diverse articles covering the spectrum of effective ICWA practice:

  • an overview of the new 2016 ICWA regulations; 

  • guidance on how the ICWA regulations affect practice;

  • advice for state courts on working with tribes collaboratively to benefit clients;

  • an analysis of current, pending case law and concerning ICWA and the new regulations;

  • reflections from a tribal judge on the state and tribal courts’ roles in strengthening Indian families; and

  • strategies for evaluating case outcomes and ICWA compliance in Indian child welfare cases.

Before the recent guidance and regulations, states were left with their own widely varying interpretations of ICWA’s application—interpretations often not informed by Indian or tribal law. Now that this federal guidance exists, it is up to legal professionals, including attorneys, judges, and others, to understand and implement ICWA in a way that protects families’ rights and ends the disproportionate removal of Indian and Alaska Native children from their homes. This issue will help you grasp the technicalities of ICWA so you can best serve and advocate for your clients’ needs and help families stay together. 

Shanna Knight, JD, ICWA specialist, National Indian Child Welfare Association. 

Endnotes

1. U.S.C. § 1901 et. seq.

2. “Indian Child Welfare Program,” Hearings before the Subcommittee on Indian Affairs of the Senate Committee on Interior and Insular Affairs, 93rd Cong, 2d Sess, at 1, 3; see also American Indian Policy Review Commission Task Force Four. Report on Federal, State, and Tribal Jurisdiction, July 1976, 79.

3. Summers, A., S. Woods and J. Donovan. Technical Assistance Bulletin: Disproportionality Rates for Children of Color in Foster Care. National Council of Juvenile and Family Court Judges, 2013.

4. See brief of 18 national child welfare organizations as amici curiae in support of respondent birth father in Adoptive Couple v. Baby Girl, No. 12-399 (“Amici are united in their view that, in the Indian Child Welfare Act, Congress adopted the gold standard for child welfare policies and practices that should be afforded to all children …”).