Indian Child Welfare Act of 1978 (ICWA)

"I can't think of a law that I apply daily that allows me to do the right thing more often. It's crucial and all judges need to understand it and try their best to do the right thing." -Honorable Karen Adam. Presiding Judge, Pima County Superior Court (Arizona)

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A different way of thinking about Child Welfare.

The Indian Child Welfare Act of 1978, or ICWA, is possibly the most misunderstood and least consistently enforced Federal Act of Legislation by Judges, and yet one of the most important pieces of law in protecting Native American Tribal Cultures. To understand ICWA, you need to have some context of the history of colonial violence and residential boarding schools toward Native Tribes in the United States. 

Historical Context

Between the mid-1800s and late 1900s, many tribes were displaced onto the reservation system by the US Government. They became completely reliant on the Federal Government for Food, Blankets, and Provisions for life. Prior these tribes hunted and gathered and lived off of their ancestral lands plentifully for dawn millennia. Being reliant on the Government for the resources of life, they were ordered to surrender their children to boarding schools managed by the Catholic Church to receive those provisions. At these schools, the mantra was 'Kill the Indian, Save the Man, ' meaning forcefully assimilating the children, punishing them for speaking their language, and abused until they had no trace of their culture left. "Due to disease, abuse, neglect, and despair, half of all Indian children sent to BIA boarding schools in the late 1800s and early 1900s did not survive." Many kids died at these schools, and hundreds of graves have been excavated these past few years, primarily in Canada, to return the remains to their tribes. These schools mostly have closed in the past several decades, but some still operate in some capacity. Child removal is still a very big problem to today in many Native American tribes. 

“Even in the 1970s, data found that one in four native children were living away from their families, whether it’s through adoption, foster care, institutionalization, prison, boarding schools.  You had a whole 25 percent of Native American children living away from their parents and their tribes.” (Martin, 2015)

Many agencies in the past fifty years, using Euro-centric neglect rubrics, would determine Native kids to be abused because of cultural incompetencies, and then remove said children into foster care. This would completely remove a child from their immediate and extended family, tribe, and culture. This would have devastating long term psychological impacts as they grew into adulthood. ICWA was established to place safeguards and protections keeping children within their own culture.

What ICWA Does

"ICWA's purpose is to preserve and promote children's connection to their families and tribes. ICWA intervenes to prevent inappropriate child removals and placements. ICWA compliance requires judges to identify any Indian child in the system and then follow ICWA's mandates"

"I think it's fascinating the way that the culture of the tribe is reflected in its court proceedings.. in child welfare cases, the tribe wants to get everybody together and have a meeting, not just biological family, but everyone in the community who is interested. And they talk and try to come up with an answer. This is a classic example of Indigenous cultures teaching the dominant culture that maybe there's a better way. The adversarial model is terrible for families."

-Name not given.

"One area where tribes differ from states is in dealing with family problems, is the notion of cutting children off from families. The traditional approach in nonindian families is to terminate parental rights if the parent's misbehavior reaches a certain threshold. In tribal communities, if you cut a child off from family, grandparents, aunts and uncles, and cousins, that really is almost active abuse upon that child. In the Indian community, it isn't just who you are related to but who that child as they can call on in times of need. In increasing numbers of tribes, they are turning to something called customary adoption. If your parents can't provide what you need, we'll substitute a new set of parents, but there's no need to substitute grandparents, aunts, uncles, or siblings; they all remain intact. It is more like the extended family adopts in a new set of parents. "

-Name not given

Under the UN Declaration on the Rights of Indigenous Peoples: "Indigenous peoples have the collective right to live in freedom, peace, and security, as distinct peoples, and shall not be subjected to any act of violence, including forcibly removing children of the group to another group. Indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture."

"ICWA's purpose is to preserve and promote children's connection to their families and tribes. ICWA intervenes to prevent inappropriate child removals and placements. ICWA compliance requires judges to identify any Indian child in the system and then follow ICWA's mandates"

ICWA is a federal act of legislation that was passed to remediate the damages caused from generations of Native children being taken away from tribes in an ill attempt of rescue. The rubrics used today to assess for child abuse and neglect are culturally biased towards whiteness in America, and very often Native Americans are disproportionately targeted by child welfare agencies. ICWA is more than a law, it represents a legitimization of Native American familial structures in custody determinations. It is a different paradigm on child custody. Even in 2022, many Judges are not informed about ICWA because they falsely believe they do not have Native American children in their jurisdiction due to false beliefs about Native erasure and those cultures being a relic of the past.

In Native families, a child's support network is extended with cousins, aunts, uncles, grandparents, all of whom are involved and fill parental roles in the child's life. Removing a child from that family structure is tantamount to abuse. Often the dominant cultures paradigm of custody is adversarial, where one parent fights the other parent. In a Native American family structure, all members of that child’s life would come together for a meeting and find solutions when problems come up. This is not just with Native Americans, but many types of family systems based on tribalism.

As of this November of 2022, a case is being heard by the Supreme Court challenging to remove protections of the Indian Child Welfare Act. This is a pressing issue and threat to protections for Native American tribes retaining rights to their culture and their children (AP News, 2022.) For more information about ICWA and why it is important, please watch this educational resource video by the Native American Rights Fund.

"I'd like to say to judges across the country never to let anyone tell you you don't have any Native American children ICWA applies to. It's not true. You do, Whether you are in New York City, Arizona, Charlotte, NC, Georgia, Seattle, Washington, or anywhere in between. There are native American children that ICWA applies to in your Jurisdiction."

Honorable Louis Trosch, Jr. Judge, Mecklenburg County, District Court (North Carolina)

Martin, P. (2015, October 12). _Forced Removal of Native American Children From Parents Exposed in 1\3 Minutes_. WGBH News. https://www.wgbh.org/news/post/forced-removal-native-american-children-parents-exposed-13-minutes

This video is an Educational Resource published by the Native American Rights Fund and produced by Mad Genius, Inc. in Ridgeland, Mississippi on August 9th, 2013 as a collaboration between the Mississippi Courts, Child Welfare Agency, Mississippi Band of Choctaw Indians, and the National Resource Center on Legal and Judicial Issues and the National Resource Center for Tribes. Indian Child Welfare Act - Educational Resource Video - YouTube

1. ## Sources Cited

Graham, K. (2022, November 8). _Supreme Court set to hear challenge to Indian Child Welfare Act_. Digital Journal. https://www.digitaljournal.com/world/supreme-court-set-to-hear-challenge-to-indian-child-welfare-act

The Indian Child Welfare Act (ICWA), enacted in 1978, is a crucial federal law aimed at safeguarding the connection between Native American children, their families, and their tribes. Recognizing the historical injustices of forced removal and assimilation practices, ICWA seeks to prevent unwarranted removal of Native children from their cultural heritage and ensure appropriate placements when removal is necessary. Compliance with ICWA mandates that judges identify any Indian child within the child welfare system and adhere to the Act's specific provisions.

Historical Context: Addressing Colonial Violence and Boarding Schools

ICWA was a direct response to generations of Native American children being separated from their families and tribes, often under the guise of rescue. This practice was rooted in culturally biased child welfare standards that disproportionately targeted Native families. During the mid-1800s to the late 1900s, the U.S. government's reservation system led to tribal dependence, which was exploited to coerce the surrender of Native children to Catholic-run boarding schools. The assimilationist motto of these schools, "Kill the Indian, Save the Man," involved the suppression of Native languages and cultures through harsh punishments. Tragically, a devastating number of children perished in these institutions due to disease, abuse, neglect, and despair. Even in the 1970s, statistics revealed that one in four Native children lived away from their families in various settings, including adoption, foster care, institutions, and boarding schools.

ICWA as a Paradigm Shift in Child Custody

ICWA represents a fundamental shift in how child custody is determined for Native American families. It acknowledges and legitimizes the extended family structures prevalent in Native cultures, where cousins, aunts, uncles, and grandparents play significant parental roles in a child's life. Removing a child from this supportive network is considered deeply detrimental. In contrast to the often adversarial nature of child custody proceedings in dominant culture, Native American family systems often prioritize collective problem-solving through family and community meetings. This more holistic approach, based on tribal values, offers valuable lessons for the broader child welfare system.

The Importance and Misunderstanding of ICWA

Despite its significance in protecting Native American tribal cultures, ICWA remains one of the most misunderstood and inconsistently enforced federal laws. A persistent misconception among some judges is that ICWA does not apply in their jurisdiction due to inaccurate beliefs about Native American erasure. However, as emphasized by judges across the country, Native American children to whom ICWA applies exist in every jurisdiction.

What ICWA Accomplishes

ICWA establishes vital safeguards to keep Native children connected to their culture. It recognizes the unique needs and strengths of Native families and prioritizes placement with extended family members, tribal members, or other Native American families when removal from the immediate family is necessary. The Act stands against the forced assimilation and cultural destruction historically inflicted upon Native communities. The principles underlying ICWA align with international declarations on the rights of Indigenous peoples, which affirm the right to live in freedom, peace, and security as distinct peoples and to not be subjected to forced removal of children or cultural destruction.

Judicial Perspectives on ICWA

Honorable Louis Trosch, Jr., and Honorable Karen Adam, both judges with extensive experience applying ICWA, underscore its importance in allowing them to act in the best interests of Native American children and families. They stress the crucial need for all judges to understand and diligently implement ICWA.

Understanding the Cultural Context for Child Welfare

Knowledge of religious and spiritual beliefs is paramount when working with clients from diverse backgrounds. In the context of Native American families, understanding tribal customs, extended family roles, and community-based support systems is essential for culturally competent child welfare practices. ICWA itself reflects the cultural values and approaches to family support within Native communities.

Resources for Further Understanding

Resources such as the Native American Rights Fund's educational video provide valuable insights into ICWA and its implementation. Understanding the historical context and the intent behind ICWA is crucial for its effective application and for ensuring the well-being of Native American children and the preservation of their tribal heritage.