History: Indian Child Welfare Act

History Behind Enactment of The Indian Child Welfare Act

        In 1978 Congress enacted the Indian Child Welfare Act ii (Act or ICWA), in response to a national crisis in which an alarmingly high percentage of Indian families were being broken up due to the often misguided removal of Indian children from their families and tribal communities. Prior to the Act's passage, Senate oversight hearings in 1974 yielded numerous examples, statistical data, and expert testimony documenting "the wholesale removal of Indian children from their homes ... the most tragic aspect of Indian life today." iii Congress also heard testimony indicating that, by conservative estimates, one out of five Indian children has lived in foster or adoptive home at some time. iv It was found in States with large Indian populations an incredible 25 to 35 percent of Indians were in out of home placement or adoptive homes at one time in their lives.v

        In Minnesota for example between 1972 and 1974, one-quarter of Indian children under one year of age were adopted. vi In Minnesota Indian children were placed in foster care or adoptive homes at a per-capita rate of five times that of non-Indians, and 97.5% of Indian children placed for adoption were placed into non-Indian families. The removal rates for Indian children in other states were just as alarming. In South Dakota Indian children were disproportionally represented in foster care at a rate of sixteen times that of non-Indians. vii In Washington Indian children were being adopted at a rate of nineteen times that of non-Indians. viii

        The disproportionate rate at which Indian families were being broken up has had severe consequences to Indian children, parents, and tribal communities.  Dr. Joseph Westermeyer, a University of Minnesota social psychiatrist, testified to Congress about his research, which indicated that Indian adolescents who are raised in non-Indian homes typically have difficulty coping in white society, despite the fact they had been raised in a white environment. ix A 1975 report prepared for the American Academy of Child Psychiatry states, "native American children placed in off-reservation non-Indian homes are at risk in their later development. Often enough they are cared for by devoted and well-intentioned foster or adoptive parents. Nonetheless, particularly in adolescence, they are subject to ethnic confusion and a pervasive sense of abandonment." x

        Puyallup Tribal Chair Ramona Bennet succinctly stated the parents' perspective: "If you lose your children, you are dead; you are never going to be rehabilitated, you are never going to get well." xi 

        For the tribes, Congress heard the testimony of Mr. Calvin Isaac, Tribal Chief of the Mississippi Band of Choctaw Indian, who stated:

Culturally, the chances of Indian survival are significantly reduced if our children, the only real means for the transmission of the tribal heritage, are to be raised in non-Indian homes and denied exposure to the ways of their People. Furthermore, these practices seriously undercut the tribes' ability to continue as self-governing communities. Probably in no area is it more important that tribal sovereignty be respected than in an area as socially and culturally determinative as family relationships. xii

Chief Isaac also summarized the principal reason for the high rates of removal of Indian children:

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 contemptful of the Indian way and convinced that removal, usually to a non-Indian household or institution, can only benefit an Indian child. xiii

        One of the particular points of concern to Congress was the failure of social workers to understand the role of the Indian extended family. The House Report on ICWA thus states:

An Indian child may have scores of, perhaps more than a hundred, relatives who are counted as close, responsible members of the family. Many social workers, untutored in the ways of Indian family life or assuming them socially irresponsible, consider leaving the child with persons outside the nuclear family as neglect and thus grounds for terminating parental rights. xiv

        In addition to the alarming removal rates of Indian children is the Federal Governments well documented involvement in the destruction of Indian families through Federal policies. For example in 1971, 17% of Indian children where removed from families to attend Bureau of Indian Affairs (BIA) boarding schools. xv The Indian children were often times isolated from families and punished for speaking their own language and practicing their own religion. Based upon this evidence, in passing the ICWA Congress found:

...that the States, exercising their recognized jurisdiction over Indian child-custody proceedings through administrative and judicial bodies, have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families. xvi

        The Indian Child Welfare Act addresses the crisis in Indian placement in two ways. First, it provides that no Indian child may be removed from the home unless qualified Indian expert testimony indicates that the child is in danger of experiencing physical or emotional harm. xvii This requirement, if followed, will ensure that removal of an Indian child from the home is based upon objective indicia of harm to the child, rather that subjectively applied cultural or social standards. Secondly, where Indian expert testimony does indicate that likelihood that continued custody in the home will result in harm to the child, the ICWA generally requires that the child be removed from the home, but placed, in order of preference, within the Indian extended family, within the family of the child's tribal affiliation, or within another Indian family. xviii Placement of Indian children in Indian homes was Congress' way of ensuring that when state court and child-protection agencies place Indian children outside of the home, they do not sever the children from their only means of receiving their cultural heritage - the Indian family. xix

Congress found as the purpose of the Act:

The congress hereby declares that it is the policy of this Nation to protect the best interest 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 programs.

        Congress concluded as the legislative history shows that proper implementation of the Act itself would serve the "best interests" of Indian children.

i Parts of the following History were taken from the Indian Child Welfare Law Center Case for Support (6/28/93) prepared by Mark Fiddler.
ii 25 U.S.C. § 1901 et seq. (1978).
ii Indian Child Welfare Program, Hearings before the Subcommittee on Indian Affairs of the Senate Committee on Interior and Insular Affairs, 93 Cong., 2d Sess., at 3 (1974)(statement of William Byler)(herinafter 1974 Hearings).
iv American Indian Policy Review Commission, Report on Federal, State, and Tribal Jurisdiction, at 19 (1976) (hearinafter the 1976 Report).
v The House Report, H.R. Rep. No. 1386, 95th Cong., 2nd Sess. (1978), reprinted in 1978 U.S. Code Cong. & Ad. News 7530 (hereinafter House Report) at page 9.
vi See House Report at 9.
vii Id.
viii Id.
ix 1974 Hearings, at 46.
x Indian Child Welfare Act of 1977 Hearing on S.1214 before the Senate Select Committee on Indian Affairs, 95 Cong., 1st Sess. (1977), at 114 (hereinafter the 1977 Hearings)(statement of Drs. Carl Mindell and Alan Gurwitt, American Academy of Psychiatry).
xi Id. at 164.
xii Hearings on S. 1214 before the Subcommittee on Indian Affairs and Public Lands of the House Committee on Interior and Insular Affairs, 95th Cong., 2d Sess. (1978), at 193 (hereinafter 1978 Hearings).
xiii Id, at 191-192.
xiv House Report at 10.
xv House Report at 9.
xvi 25 U.S.C. § 1901.
xvii 25 U.S.C. § 1912(e),(f).
xviii 25 U.S.C. § 1915.
xix See House Report at 19 (where the House stated that compliance with ICWA is "in the best interest of an Indian child").

If you need help or more information:

Indian Child Welfare Act Law Center
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1730 Clifton Place
Minneapolis, MN 55403

1-866-879-0123