User:Ulalek Elminster/Indian Child Welfare Act

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The Indian Child Welfare Act of 1978 (ICWA, enacted November 8, 1978 and codified at 25 U.S.C. §§ 1901–1963) is a United States federal law that governs jurisdiction over the removal of American Indian children from their families in custody, foster care and adoption cases.

It gives tribal governments exclusive jurisdiction over children who reside on, or are domiciled on a reservation. It gives concurrent, but presumptive jurisdiction over foster care placement proceedings for Native American children who do not live on the reservation. It was enacted to respond to the disproportionate removal of Indigenous children from Tribal communities and the resulting threat to the survival of Native American culture.

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ICWA was enacted in 1978 because of the disproportionately high rate of forced removal of Native children from their traditional homes and essentially from Native American cultures as a whole. Before enactment, as many as 35 percent of all Native children were being removed, usually forcibly, mostly from intact Native American families with extended family networks, and placed in predominantly non-Native homes, which had no relation to Native American cultures. In some cases, the Bureau of Indian Affairs (BIA) paid the states to remove Native children and to place them with non-Native families and religious groups.

Testimony from three executive departments, twenty states, 22 non-Indian private organizations, 35 Indian organizations, and 38 Indian Tribal nations in the House Committee for Interior and Insular Affairs showed that, in some cases, the per capita rate of Native children in foster care was nearly 16 times higher than the rate for non-Natives. The tribes said that such removal demonstrated lack of understanding by child welfare workers of the role of extended families in tribal culture, and threatened tribal survival by removing children at such a high rate. The process also damaged the emotional lives of many children, who lost touch with their people and culture, as adults testified who had been through the process. Congress recognized this, and stated that the interests of tribal stability were as important as the best interests of the child. One of the factors in this judgment was a recognition that, because of the differences in culture, what was in the best interest of a non-Native child was not necessarily what was in the best interest of a Native child. The latter traditionally have larger extended families and tribal relationships in their culture.

As Louis La Rose (Winnebago Tribe of Nebraska) testified:

I think the cruelest trick that the white man has ever done to Indian children is to take them into adoption court, erase all of their records and send them off to some nebulous family ... residing in a white community and he goes back to the reservation and he has absolutely no idea who his relatives are, and they effectively make him a non-person and I think ... they destroy him.

Calvin Isaac (Choctaw Tribal leader) testified:

One of the most serious failings of the present system is that Indian children are removed from the custody of their natural parents by non-tribal governmental authorities who have no basis for intelligently evaluating the cultural and social premises underlying Indian home life and child rearing. Many of the individuals who decide the fate of our children are, at best, ignorant of our cultural values and, at worst, have contempt for the Indian way and convinced that removal, usually to a non-Indian household or institution can only benefit an Indian child.

Congress recognized that four primary factors contributed to the high rates of Native child removal by states. These were 1) "a lack of culturally competent State child-welfare standards for assessing the fitness of Indian families; 2) systematic due-process violations against both Indian children and their parents during child-custody procedures; 3) economic incentives favoring removal of Indian children from their families and communities; and 4) social conditions in Indian country."

Various other groups have also had stakes in these decisions. The Church of Jesus Christ of Latter-day Saints (LDS Church) had an Indian Placement Program that removed Native children from their tribes and placed them into church members' homes. By the 1970s, approximately 5,000 Native children were living in Mormon homes. The lack of knowledge about Native American culture by most social workers also contributed to the high removal rates. Most social workers are conditioned by the "best interest of the child," as outlined by Beyond the Best Interests of the Child (Second Edition), which advocates bonding with at least one adult as a parent figure. This did not take into consideration the tribal culture of the extended tribal family, in which children could have close relationships with members of the extended family. The common Native American practices of having a child cared for by an extended relative was viewed as abandonment by allegedly well-intentioned, but arguably paternalistic, state social workers. But tribal members considered care by an extended family member to be normal behavior and a desirable way to ensure the child was cared for by family.

During congressional consideration, held at the request of Native American advocacy groups, opposition was raised by several states, the LDS Church, and several social welfare groups. The bill was pushed through by Representative Morris Udall of Arizona, who lobbied President Jimmy Carter to sign the bill. It was strongly supported by Senator James Abourezk of South Dakota, who had authored the bill and previously contributed to founding the American Indian Policy Review Commission and the Select Committee on Indian Affairs, each of which he chaired.

Indian child removal is one example of a broader trend promoting Indigenous assimilation, particularly through the targeting of Indigenous children. Other instances include Indian boarding schools and the Save the Babies campaign. These movements all focused on separating Indian children from their Tribal communities, preventing the generational transfer of cultural practices.

Congress's overriding purpose in passing the ICWA was to protect Native culture and tribal integrity from the unnecessary removal of Native children by state and federal agencies. Awareness of the issues facing Native American children was raised by the advocacy and research by the Association on American Indian Affairs. Congress reasoned that "there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children."