Indian Child Welfare Act

The Indian Child Welfare Act (ICWA) is as a federal law passed in 1978 in response to the alarmingly high number of Indian children being removed from their homes by both public and private agencies. ICWA sets federal requirements that apply to state child custody proceedings involving an Indian child who is a member of, or eligible for membership in, a federally recognized tribe. Child custody proceedings under ICWA include hearings focused on foster care placement, termination of parental rights, adoption, and placements related to status offenses. (Courtesy of the National Indian Child Welfare Association FAQ Page). ICWA also allows for the transfer of Indian child welfare cases into tribal court.

For more information on the extent of the damage resulting from government removal policies, see the Amicus Brief submitted by Indian law professors in the Adoptive Couple v. Baby Girl Supreme Court case.

ICWA can be broken down into seven major parts: 

• Section 1901 – Congressional Findings
• Section 1902 – Congressional Declaration of Policy
• Section 1903 – Definitions
• SUBCHAPTER I – Child Custody Proceedings (Section 1911 – 1923)
• SUBCHAPTER II – Indian Child and Family Programs (Section 1931 to 1934)
• SUBCHAPTER III – Recordkeeping, Information Availability, and Timetables (Section 1951 – 1952)
• SUBCHAPTER IV – Miscellaneous Provisions (Section 1961 to 1963)

The stated purpose of ICWA is “to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture . . .” (§ 1902) ICWA applies in all child custody proceedings involving foster care placements, termination of parental rights, and pre-adoptive and adoptive placements. (§ 1903) ICWA does not apply in divorce proceedings involving custody disputes.

ICWA advocates continue to monitor challenges to the ICWA and state ICWA laws. (See National Indian Child Welfare Association (NICWA) section below) Additionally, ICWA has been designated by professionals as the “gold standard” in child welfare practice.  For links to comprehensive state ICWA laws, courtesy of the ICWA Appellate Project Indian Law Clinic at MSU College of Law, please click here.

Indian Child Welfare Act Regulations

Because of a need for uniform federal standards, resulting from the continuous high rate of American Indian youth removed from their homes and communities, some state courts’ inappropriate and harmful interpretations of the Indian Child Welfare Act (ICWA), and other factors, the Department of Interior promulgated ICWA regulations in 2016.  The regulations were published in the Federal Register at 81 FR 38778 and codified in the Code of Federal Regulations (CFR) at 25 CFR part 23.

• Initial Observations on the ICWA Regulations (Courtesy of Kathryn E. Fort)
• 25 CFR 23 – ICWA Frequently Asked Questions (Courtesy of NICWA)
• Summary of Key Provisions (Courtesy of NICWA and Native American Rights Fund)

Indian Child Welfare Act Guidelines

Indian Child Welfare Act Guidelines are issued by the Dept. of the Interior and are intended to assist those involved in child custody proceedings in understanding and uniformly applying the Indian Child Welfare Act (ICWA) and U.S. Department of the Interior (Department) regulations (also referred to as a “rule”). Before 2015, the ICWA Guidelines for state implementation of the Indian Child Welfare Act (ICWA) were last released in 1979, just after the passage of the ICWA. The 2015 Guidelines were updated in 2016 following the promulgation of ICWA regulations (legally binding rules) in 2016.

The 2016 Guidelines for Implementing the Indian Child Welfare Act are available online and are meant to align with the organization of the regulations. Unlike regulations, guidelines are not legally binding and only offer assistance to stakeholders in ICWA cases.

A summary of the guidelines can be found here (Courtesy of NICWA).

Designated Tribal Agents for Service

The Indian Child Welfare Act (ICWA) regulations provide that tribes can designate an agent other than a Tribal Chairperson for service of notice of ICWA proceedings. To review the list of designated tribal agents as of March 2017 as listed in the Federal Registrar, click here.

Indian Child Welfare Act Supreme Court Cases

These are the only two US Supreme Court cases on ICWA:

• Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 (2013): Baby Girl involved a non-Native couple in South Carolina who sought to adopt a young Cherokee girl over the objection of her Cherokee father. The U.S. Supreme Court decision implicated §1912(f), §1912(d), and §1915(a) of the ICWA. (See below National Indian Child Welfare Association (NICWA) for a case summary)
• Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30 (1989): Holyfield involved twins from the Mississippi Band of Choctaw. The twins’ parents, both enrolled tribal citizens and domiciled on the reservation, pursued adoption in a county Chancery Court. Because the twins were “domiciled” on the Choctaw reservation, the Chancery Court did not have jurisdiction over the adoption as the adoption fell under the ICWA’s exclusive tribal jurisdiction provision. (§1911(a))

ICWA Info, managed by the Native American Rights Fund (NARF), is designed to provide the public with information and timely updates about all things related to Indian child welfare and the Indian Child Welfare Act, including ICWA cases. 

Indian Child Welfare Act Reports 

The U.S. Government Accountability Office (GAO) is a non-partisan agency that works for Congress to investigate allegations of improper or illegal activity, to report on government programs and policies, to issue legal decisions and opinions, to analyze policy, and to audit agency funding.

• In February 2015, the GAO competed a review of Tribes’ experiences with Title IV-E funding, which provides federal support for foster care and adoption assistance programs. The Fostering Connections to Success and Increasing Adoptions Act of 2008 opened Title IV-E foster care program administration to Tribes. The GAO found that some of the Title IV-E requirements served as barrier to Tribes adopting foster care programs despite high tribal interest. Access the full report, Foster Care: HHS Needs to Improve the Consistency and Timeliness of Assistance to Tribes.
• In April 2005, the GAO completed a review on the implementation of the ICWA. The report, Indian Child Welfare Act: Existing Information on Implementation Issues Could Be Used to Target Guidance and Assistance to States, called for greater oversight to ensure states are complying with the ICWA. Click here for highlights.

National Organizations Addressing the Indian Child Welfare Act

National Indian Child Welfare Association (NICWA) has served hundreds of Native Nations across the country by helping to strengthen and enhance their capacity to deliver quality child welfare services. NICWA also serves as a lead policy advocate on ICWA issues.

• NICWA is part of the ICWA Defense Project, a coalition comprised of NICWA, the National Congress of American Indians, the NARF, and the ICWA Appellate Clinic at Michigan State University College of Law. The project regularly publishes Memos reporting on cases challenging ICWA and its constitutionality.
• NICWA produces publications to share further resources with tribal leaders, families, and allies. These publications include Fact Sheets on “The Top Ten Myths About ICWA” and “Setting the Record Straight.”
• Share NICWA’s “The Heart of ICWA” campaign to raise awareness and public education around ICWA and its purpose. NICWA partnered with award-winning Producer/Director Karen Odyniec and Producer Milo Daemgen to produce four shor-form digital stories to inform others about ICWA through storytelling.
• AAIA and NICWA Legal Guide to the Supreme Court Decision in Adoptive Couple v. Baby Girl includes summary of the case and legal analysis, including the impact of state statutes and tribal/state agreements. This document is designed to summarize the decision (what the case held about the ICWA, what it did not hold, and what it implied), and provide advocates for tribes, birth parents (particularly unwed fathers), and Indian children with possible responses to the decision.
• Court Reform and American Indian and Alaskan Native Children: (2009) - This Technical Assistance Brief, a joint publication of NICWA and the NCJFCJ, has found that additional improvements in data collection and collaboration between courts and public agencies are required to better meet the unique needs of American Indian/Alaskan Native (AI/AN) children in court dependency cases, and offers additional recommendations.

Tribal STAR – Successful Transitions for Adult Readiness is a training and technical assistance program operated out of the San Diego State University School of Social Work. Tribal STAR provides training to child welfare social workers, court personnel, attorneys, judges, tribes, Indian services agencies, and ICWA advocates.

• Tribal STAR resources are available here, and cover topics such as customary adoption, legal services, and digital stories.
• ICWA Core 3.0 Curriculum
• Détente and Decorum for Child Welfare Leaders: Strategic Teaming and Engagement with Tribes and Native American Communities 

Native American Rights Fund (NARF) is a non-profit organization founded in 1971 to provide legal assistance to Indian people, tribes, and organizations. NARF offices are located in Washington D.C., Anchorage, Alaska, and Boulder, Colorado.

• NARF is part of the ICWA Defense Project. The ICWA Defense Project is a coalition comprised of NICWA, the National Congress of American Indians, the NARF, and the ICWA Appellate Clinic at Michigan State University College of Law. The project regularly publishes memos reporting on cases challenging ICWA and its constitutionality.
• The Practical Guide to the Indian Child Welfare Act has been updated by NARF to include state and federal cases through September 2011.
• ICWA Info, an online resource brought to you by NARF and Casey Family Programs in 2013. ICWA Info is designed to provide the public with information and timely updates about all things related to Indian child welfare and the Indian Child Welfare Act.
• NARF General ICWA Information.

Capacity Building Center for Tribes (CBC4Tribes) is a partnership of four organizations that collectively have more than ninety years of experience working with tribal and state partners designing, delivering, and evaluating capacity building services in Indian country. The organizational partners are the Butler Institute for Families, the Tribal Law and Policy Institute, University of Southern Maine, Muskie School, and Westat. The partnership. is part of the Children’s Bureau’s new Child Welfare Capacity Building Collaborative. Click here for CBC4Tribes’ brochure.

• The Tribal Child Welfare Information Exchange contains a breadth of resources aimed to build tribes’ capacity to nurture the safety, permanency, and well-being of Native children, youth, and families.
• ICWA Peer Learning Groups are designed to create a private space, respectful of tribal sovereignty, that allows tribal members to reach their peers and support one another as they work to improve outcomes for our families.
• ICWA Guide for Tribal Governments and Leaders can now be saved to your home screen as an app for offline access.

National Child Welfare Resource Center for Tribes (NRC4Tribes) was a resource center within the Children’s Bureau Training and Technical Assistance Network. The federal grant funding NRC4Tribes ended on September 30, 2014. However, it remains live to keep NRC4Tribes resources accessible. 

The Indian Child Welfare Act was one of the five overarching themes or topic areas identified through the  NRC4Tribes Needs Assessment Findings - Executive Summary and complete NRC4Tribes Needs Assessment Findings. The NRC4Tribes Needs Assessment includes a series of specific findings and recommendations concerning ICWA. Most tribes interviewed for the needs assessment reported that states and counties comply with ICWA by notifying them when member children are taken into the custody of these departments, and very few jurisdictional disputes were reported. However, many of those interviewed felt that, in general, state/county workers did not understand or correctly interpret ICWA, and that this created a barrier to collaborating successfully on ICWA cases. In addition, state/county workers often were seen as not accepting the need for ICWA and lacking awareness of important cultural aspects and tribal processes, such as enrollment.

Findings from the NRC4Tribes Needs Assessment

• Development of tribal ICWA policies and procedures
• Resources for more tribal workers dedicated to ICWA cases
• Timely receipt of ICWA notifications from states and counties
• Need for training of state and county workers on ICWA legal and practice aspects
• Increasing state and county workers understanding of why ICWA is needed
• Increasing understanding and awareness of tribes and reservation contexts on the part of state and county workers
• Increased compliance with ICWA placement preferences, especially placement with extended family and other tribal kin
• Widely differing perceptions on the parts of tribal and state/county child welfare staff regarding the quality and level of state/tribal collaboration and state ICWA compliance
• Continuing adoption of tribal children by non-Indians in state and county courts

Be sure to view the following resource pages available at the NRC4Tribes website:

• Background and Need for ICWA In drafting the ICWA legislation, Congress found, among other things, “…that an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster or adoptive homes and institutions…” Clicking the above link will allow you to view resources concerning why ICWA was and continues to be needed.
• ICWA Policies and Procedures Policies and procedures strategically link an organizations vision and its day-to-day operations.  Staff rely upon these extremely important documents to guide their various roles within the agency.  Clicking this link will allow you to view resources concerning tribal and state ICWA policies and procedures
• ICWA Tribal State Agreements Nearly half of the tribes that participated in the needs assessment that currently have a tribal/state agreement felt that their agreements were working insofar as the tribe agreed with the terms, the agreement was consistently honored by the state, and the tribe and state worked collaboratively to serve Indian children and families in a culturally appropriate way. Clicking on this link will take you to the Child Welfare Collaborations page of this website
• ICWA Compliance According to the 2010 Needs Assessment compliance with ICWA provisions, on the part of states and counties, remains a problem in some jurisdictions, even more than 30 years after the passage of the Act.
  • NRC4Tribes Needs Assessment Findings - Executive Summary, (2011)
  • Findings from the National Needs Assessment of American Indian/Alaska Native Child Welfare Programs, (2011) 
• ICWA Qualified Expert Witness Resources Title 25, United States Code, Section 1912(e) sets forth among other things that no foster placements may be ordered without affording testimony of a qualified expert witness that a parent’s or Indian custodian’s continued custody of the Indian child will result in serious emotional or physical damage.  Clicking this link will allow you to view resources concerning ICWA Qualified Expert Witness.
• The Bureau of Indian Affairs annually posts Indian Child Welfare Act; Designated Tribal Agents for Service of Notice regulations in the Federal Register.

California Indian Legal Services (CILS) is an advocacy organization providing no-to-low cost legal representation to Indian individuals and tribes. CILS’ history includes representing tribes seeking federal recognition, protecting water rights, creating and expanding gaming operations, and advocating for the passage of California’s Indian Child Welfare Act law. CILS has offices in Bishop, Escondido, Eureka, and Sacramento, California.

• CILS produces a Judges Benchguide on the ICWA. The latest edition is from June 2012.
• To assist tribes that may not be able to afford licensed attorneys to appear in state court for every child custody case, CILS designed an ICWA Advocate Guide (March 2016) to assist tribal representatives, often social workers, who participate in the proceedings.
• With support from the California Department of Social Services, CILS designed ICWA Training Webinars to provide tribes with additional resources. 

Casey Family Programs is a foundation focused entirely on foster care and the child welfare system. It works with AI/AN communities to support their efforts to improve the safety and success of children. An overview of their work with ICWA can be found here. Casey Family Programs also has an ICWA Field Office in Denver, CO.

• Casey Family Programs has released numerous research reports on the ICWA. To browse, research reports click here.
• Strategies for Successfully Recruiting and Retaining Preferred-Placement Foster Homes for American Indian Children. (2017)
• Indian Child Welfare Act Snapshot: A Pilot Review of ICWA Practice in Oklahoma. (2015)
• Placement Patterns for American Indian Children Involved with Child Welfare. (2015)
• Measuring Compliance with the Indian Child Welfare Act: A Research and Practice Brief. (2015) 

National Council of Juvenile and Family Court Judges (NCJFCJ) has focused on addressing issues affecting juvenile and family courts. NCJFCJ works to ensure justice for every family and every child in every court throughout the country.

• Tribal Work and ICWA Publication Resources Web-page that hosts all of NCJFCJ publications related to ICWA and other tribal child welfare issues. 
• The ICWA Judicial Benchbook by the National Council of Juvenile and Family Court Judges was created for a national audience and  is consistent with the statute, regulations, and best practices, commonly promoted by the National Council of  Juvenile and Family Court Judges (NCFCJ). The ICWA Judicial Benchbook covers all stages of the court process, from the preliminary protective hearing until juvenile and family court involvement has ended, which leads to the child safely being returned home or placed in a new, secure and legally permanent home.The ICWA Judicial Benchbook is endorsed and supported by the National American Indian Court Judges Association, the National Indian Child Welfare Association, the Tribal Law and Policy Institute, and the Indian Child Welfare Act Appellate Project at Michigan State University. (2017)
• Research Report: Assessing ICWA Compliance in Seattle, WA, (2015)
• Measuring Compliance with the Indian Child Welfare Act: An Assessment Toolkit, (2014)
• Disproportionality Rates for Children of Color in Foster Care, 2011 (Tribal Only), (2011)
• Court Reform and American Indian and Alaskan Native Children, (2009)
• Indian Child Welfare Act Checklists for Juvenile and Family Court Judges, (2003)

Blogs & Other Resources 

• Turtle Talk – blog of the Indigenous Law and Policy Center Blog Michigan State University College of Law consistently posts updates on ICWA cases, papers, and conference talks. Search by using the tag “ICWA.”
• National Congress of the American Indian (NCAI) News & Updates
• ICWA Info, managed by the Native American Rights Fund (NARF), is designed to provide the public with information and timely updates about all things related to Indian child welfare and the Indian Child Welfare Act, including ICWA cases.