Jane M. Smith
Legislative Attorney
From the 19th century to the passage of the Indian Child Welfare Act (ICWA) in 1978, the federal government, states, and private adoption agencies sought to remove Indian children from their tribes and families in order to “civilize” the children or provide them with better lives. Congress passed the ICWA to end this practice and the high rate at which Indian children were being removed from their homes and placed with non-Indians.
One survey reported that 25%-35% of all Indian children were being separated from their families and placed in foster homes, adoptive homes, or institutions. The House Committee on Interior and Insular Affairs termed the disparity between placement rates for Indians and non-Indians “shocking.” The committee concluded that many non-Indian social workers who recommended removal of Indian children from their families and communities were ignorant of Indian cultural values and social norms, and biased against typical Indian family life. The report indicated that this bias too often resulted in finding neglect or abandonment when there was none. The committee noted also that the decision to take Indian children from their natural homes was frequently carried out without due process of law and that most cases did not go through adjudication because parents voluntarily waived their parental rights in the face of coercion from the state.
Accordingly, Congress passed the ICWA to establish standards for removing Indian children from their homes, prioritizing placement of Indian children with extended family members and other Indians, and giving tribes a recognized role in the placement of Indian children by, among other things, recognizing tribal court jurisdiction over Indian child placements and adoptions. In addition, the ICWA includes important procedural protections for Indian parents, custodians, and tribes to provide due process of law.
In Adoptive Couple v. Baby Girl, the U.S. Supreme Court granted a writ of certiorari in a case from the South Carolina supreme court in which an unwed non-Indian mother placed her child, whose biological father is a member of the Cherokee Nation, with a non-Indian couple without the father’s consent. The state supreme court upheld a lower court decision ordering the adoptive parents to turn over the child to her father. The Court will determine the validity of the “existing Indian family” doctrine and whether an unmarried Indian father must establish his paternity under state law in order to assert rights under the ICWA.
Date of Report: January 28, 2013
Number of Pages: 19
Order Number: R42047
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