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Friday, October 11, 2013

The Indian Child Welfare Act (ICWA): A Legal Overview

Jane M. Smith
Legislative Attorney

From the 19
th 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 Supreme Court determined that, in a proceeding to terminate parental rights in connection with an Indian child, a number of ICWA’s provisions do not apply when the parent seeking to invoke them never had legal or physical custody of the Indian child. In addition, the Court stated that the ICWA’s placement preferences for adoptions of Indian children apply only when multiple parties seek to adopt the Indian children. In Adoptive Couple, because the only party before the court seeking to adopt the Indian child was a non-Indian couple, the ICWA’s placement preferences did not apply to block their adoption. 

Date of Report: September 6, 2013
Number of Pages: 19
Order Number: R42047
Price: $29.95

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