icwaThe Indian Child Welfare Act (ICWA) was enacted by Congress in 1978 in response to the alarming number of American Indian children who had been removed from their families and placed in non-Indian homes, isolated from their tribe, their history, and their culture.

The Indian Child Welfare Act (ICWA) was passed by Congress in 1978 in response to a crisis affecting American Indian and Alaska Native children, families, and tribes. Before the law was passed, according to the National Indian Child Welfare Association, 25-35 percent of all Native children were being removed, and of those, 85 percent were placed outside of their families and communities, even when relatives were available.

Before 1978, American Indian children were removed from their families, tribes, land, and culture and placed in boarding schools, foster homes, and adoptive placements with non-native families. These actions caused irreparable harm to Indian children, families, and tribes by isolating children from their history and culture. Indian children died in boarding schools and families were torn apart. Tribes lost their most important resource, their children.

ICWA was enacted to try to remedy the devastating impact these historical practices were having on Native children, families, and tribes.

ICWA states: “It is the policy of this Nation 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, and by providing for assistance to Indian tribes in the operation of child and family service programs.” 25 USC § 1902.

As such, ICWA created higher standards for required efforts by state child protection agencies to avoid the removal of American Indian and Alaskan Native children from their homes and to reunify them with their families. Placement preferences for foster care and adoption were also established to emphasize family, culture, community, and Tribes.

In June 2016, the U.S. Department of the Interior’s Bureau of Indian Affairs released new regulations governing state court and agency child custody proceedings to ensure uniform compliance with the Indian Child Welfare Act of 1978. The new regulations took effect December 2016.

Most recently, ICWA withstood a constitutional challenge in the 2023 United States Supreme Court case of Haaland v. Brackeen. In addition, Montana, through House Bill 317 (2023), created a state version of the Indian Child Welfare Act encompassing the ideals and principles of federal ICWA.

While some progress has been made, there remains a great deal of work to be done to meet the goals of ICWA. Indian children in Montana and throughout the United States continue to be removed from their homes at a rate far higher than the general population.

Nationally, an Indian child is more than twice as likely to be removed as a child from the general population. In 2020, American Indian children made up nine percent of the child population in Montana, but were 35 percent of the children in foster care, according to the Adoption and Foster Care Analysis and Reporting System (AFCARS) for federal fiscal years 2016-2020.

To learn more about ICWA, please go to cip.mt.gov and click on the “E-Learning Courses” icon. There, you will find two Moodle-based online courses about ICWA. One is called ICWA Basics and the other is about Qualified Expert Witnesses.

 

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