The Indian Child Welfare Act (ICWA): A Legal Overview

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The Indian Child Welfare Act (ICWA):

A Legal Overview

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The Indian Child Welfare Act (ICWA): A Legal Overview

Summary

From the 19th century to the passage of the Indian Child Welfare Act (ICWA) in 1978, the federal

government, states, and private adoption agencies sought to remove Indian children from their

tribes and families in order to “civilize” the children or provide them with better lives. Congress

passed the ICWA to end this practice and the high rate at which Indian children were being

removed from their homes and placed with non-Indians.

One survey reported that 25%-35% of all Indian children were being separated from their families

and placed in foster homes, adoptive homes, or institutions. The House Committee on Interior

and Insular Affairs termed the disparity between placement rates for Indians and non-Indians

“shocking.” The committee concluded that many non-Indian social workers who recommended

removal of Indian children from their families and communities were ignorant of Indian cultural

values and social norms, and biased against typical Indian family life. The report indicated that

this bias too often resulted in finding neglect or abandonment when there was none. The

committee noted also that the decision to take Indian children from their natural homes was

frequently carried out without due process of law and that most cases did not go through

adjudication because parents voluntarily waived their parental rights in the face of coercion from

the state.

Accordingly, Congress passed the ICWA to establish standards for removing Indian children from

their homes, prioritizing placement of Indian children with extended family members and other

Indians, and giving tribes a recognized role in the placement of Indian children by, among other

things, recognizing tribal court jurisdiction over Indian child placements and adoptions. In

addition, the ICWA includes important procedural protections for Indian parents, custodians, and

tribes to provide due process of law.

In Adoptive Couple v. Baby Girl, the Supreme Court determined that, in a proceeding to terminate

parental rights in connection with an Indian child, a number of ICWA’s provisions do not apply

when the parent seeking to invoke them never had legal or physical custody of the Indian child. In

addition, the Court stated that the ICWA’s placement preferences for adoptions of Indian children

apply only when multiple parties seek to adopt the Indian children. In Adoptive Couple, because

the only party before the court seeking to adopt the Indian child was a non-Indian couple, the

ICWA’s placement preferences did not apply to block their adoption.

Congressional Research Service

The Indian Child Welfare Act (ICWA): A Legal Overview

Contents

Background ...................................................................................................................................... 1

When the ICWA Applies .................................................................................................................. 2

The “Existing Indian Family” Doctrine..................................................................................... 3

Adoptions Under the ICWA............................................................................................................. 4

Termination of Parental Rights .................................................................................................. 4

The ICWA’s Placement Preferences .......................................................................................... 6

Procedural Protections ............................................................................................................... 7

Consent ................................................................................................................................ 7

Notice .................................................................................................................................. 8

Right to Intervene ................................................................................................................ 9

Right to Counsel .................................................................................................................. 9

Reports and Other Documents .......................................................................................... 10

Remedial Services and Rehabilitation Programs .............................................................. 10

Federal Court Review........................................................................................................ 10

Foster Care Placement Under the ICWA ....................................................................................... 11

The ICWA’s Jurisdictional Scheme................................................................................................ 12

Exclusive Jurisdiction .............................................................................................................. 12

Concurrent Jurisdiction ........................................................................................................... 14

Proposed Amendments to the ICWA ............................................................................................. 15

Conclusion ..................................................................................................................................... 15

Contacts

Author Contact Information........................................................................................................... 16

Congressional Research Service

The Indian Child Welfare Act (ICWA): A Legal Overview

Background

From the 19th century to the passage of the Indian Child Welfare Act (ICWA)1 in 1978, the federal

government, states, and private agencies sought to separate Indian children from their tribes and

families in order to “civilize” the children or provide them with better lives.2 Congress undertook

to reverse this practice when it passed the ICWA in response to the high rate at which states were

separating Indian children from their parents, families, and tribes through involuntary removal of

Indian children from Indian homes and involuntary termination of parental rights.3 One survey

reported that “approximately 25–35 percent of all Indian children are separated from their

families and placed in foster homes, adoptive homes, or institutions.”4 The House Committee on

Interior and Insular Affairs—the predecessor of the present-day House Committee on Natural

Resources—termed the disparity between placement rates for Indians and non-Indians

“shocking.”5 The committee expressed concern about the welfare of Indian children who are

traumatized by removal from their families and then “adjusting to a social and cultural

environment much different from their own.”6 The committee concluded, “[i]n judging the fitness

of a particular family, many social workers, ignorant of Indian cultural values and social norms,

make decisions that are wholly inappropriate in the context of Indian family life and so they

frequently discover neglect or abandonment where none exists.”7 The committee noted also that

“[t]he decision to take Indian children from their natural homes is, in most cases, carried out

without due process of law” and that most cases did not go through adjudication because parents

voluntarily waived their parental rights in the face of coercion from the state.8

Congress declared two policy aims of the ICWA: (1) “to protect the best interests of Indian

children,” and (2) “to promote the stability and security of Indian tribes and families.”9 The ICWA

is premised on the belief that “protection of the child’s relationship with the tribe is in the child’s

best interest.”10 It identifies Indian children as a “resource” that is “vital to the continued

existence and integrity of Indian tribes.”11 Thus, the ICWA recognizes that Indian tribes have a

unique interest in their minor members or potential members. The Bureau of Indian Affairs (BIA)

described the ICWA’s policy as follows: “Congress through the [ICWA] has expressed its clear

preference for keeping Indian children with their families, deferring to tribal judgment on matters

concerning the custody of tribal children, and placing Indian children who must be removed from

their homes within their own families or Indian tribes.”12

25 U.S.C. §§1901 et seq.

Barbara Ann Atwood, Children, Tribes, and States: Adoption and Custody Conflicts over American Indian Children

155-158 (2010); see also Lorie M. Graham, “The Past Never Vanishes”: A Contextual Critique of the Existing Indian

Family Doctrine, 23 Am. Ind. L. Rev. 1 (1998-1999).

H.Rept. 95-1386, at 8-11.

Id. at 9.

Id.

Id. at 10.

Id. at 11.

25 U.S.C. §1902.

Chester County Dep’t of Social Services. v. Coleman, 372 S.E.2d 912, 914 (S.C.Ct. App. 1988).

25 U.S.C. §1901(3).

Bureau of Indian Affairs Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67,584,

67,585 (1979) (BIA Guidelines).

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The Indian Child Welfare Act (ICWA): A Legal Overview

To achieve these policy aims, the ICWA establishes “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 services programs.”13 In addition, the ICWA

provides procedural protections for parents and tribes in state court proceedings.

When the ICWA Applies

The ICWA applies to child custody proceedings involving Indian children. “Child custody

proceedings” include “foster care placement,” “termination of parental rights,” “preadoptive

placement,” and “adoptive placement.”14 It does not apply to placements resulting from juvenile

proceedings concerning an act which if committed by an adult would be a crime, or custody

determinations made in conjunction with divorce proceedings.15 Although the ICWA is associated

primarily with involuntary child custody proceedings, it applies to voluntary proceedings as

well.16 The ICWA defines “Indian child” as “any unmarried person who is under age eighteen and

is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is

the biological child of a member of an Indian tribe.”17

The BIA Guidelines18 provide “[w]hen a state court has reason to believe a child involved in a

custody proceeding is an Indian, the state court shall seek verification of the child’s status from

either the [BIA] or the child’s tribe.”19 Under the BIA Guidelines, the tribe’s determination of the

child’s or parent’s status as a member or the child’s status as eligible for membership is

conclusive.20 In the absence of a tribal determination, the BIA’s determination is conclusive.21

Id.

25 U.S.C. §1903(1).

Id.

Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30 (1989).

25 U.S.C. §1903(4).

The BIA Guidelines are not binding on the states. Rather, they are intended to provide guidance to state courts in

administering the ICWA. Courts frequently follow the BIA Guidelines as an administrative interpretation of the ICWA.

See, e.g., In re C.W., 479 N.W. 2d 105, 113 (Neb. 1992) (relying on BIA Guidelines); Felix Cohen’s Handbook of

Federal Indian Law (2005) (Cohen) 11.02[1] citing In re Junious M., 193 Cal. Rptr 40, 43 n7 (Ct. App. 1983).

BIA Guidelines, supra note 12 at 67,586.

Id. In Nielson v. Ketchum, 640 F.3d 1117 (10th Cir. 2011), however, the Court of Appeals for the Tenth Circuit

rejected the tribe’s determination that the child was a member. The Cherokee Nation adopted a “Citizenship Act,”

which made every newborn who was direct descendant of an original enrollee a temporary citizen of the Cherokee

Nation for a period of 240 days following birth. The purpose of the act was to “protect[] the rights of the Cherokee

Nation under the ICWA.” Id. at 2. The child at issue was a direct descendant of an original enrollee but his mother was

not enrolled. Thus, the ICWA applied only if the Citizenship Act effectively conferred citizenship on him for purposes

of the ICWA. Noting that Congress rejected a definition of Indian child which would have included all children eligible

for membership such as the child at issue, the court rejected the tribe’s position that the child was a member. The court

concluded that involuntary temporary membership, such as that conferred by the Citizenship Act, did not qualify as

membership for the purposes of the ICWA.

Id. The BIA Guidelines identify the following common circumstances as providing reason to believe that a child may

be an Indian child: a party, an Indian tribe, or a public or private agency informs the court the child is Indian; any

public or state licensed agency involved in child protection or family support obtains information indicating the child is

Indian; the child gives reason to believe he or she is Indian; the residence or domicile of the child or the parents is a

predominantly Indian community; and an officer of the court involved in the proceeding has knowledge that the child

may be Indian.

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The Indian Child Welfare Act (ICWA): A Legal Overview

The “Existing Indian Family” Doctrine

Although most jurisdictions have rejected the “existing Indian family” doctrine, the courts of

seven states have adopted it to determine whether the ICWA applies.22 Under this doctrine, the

ICWA does not apply when “neither the child nor the child’s parents have maintained a

significant social, cultural, or political relationship with his or her tribe.”23 Courts usually apply

the doctrine in cases involving children of mixed heritage who have been living in a non-Indian

environment for an extended period.24 The Kansas Supreme Court first formulated the doctrine

based on the belief that, “[a] careful study of the legislative history behind the [ICWA] and the

[ICWA] itself discloses that the overriding concern of Congress and the proponents of the

[ICWA] was the maintenance of the family and tribal relationships existing in Indian homes and

to set minimum standards for the removal of Indian children from their existing Indian

environment.”25

The doctrine is applied differently depending on the state. Alabama courts have limited the

existing Indian family doctrine to circumstances where the parents are unmarried and the non-

The following states have judicially adopted the existing Indian family doctrine: Alabama (S.A. v. E.J.P., 571 So.2d

1187 (Ala. App. 1990)); Indiana (In re Adoption of T.R.M., 525 N.E.2d 298 (Ind. 1988), cert. denied sub nom, In re

Adoption of T.R.M., 490 U.S. 1069 (1989)); Kentucky (Rye v. Weasel, 934 S.W.2d 257 (Ky. 1996); Louisiana (In re:

James Ronald Hampton and Jan Harris Milz Hampton., 658 So.2d 331 (La. Ct. App. 1995), cert. denied, 517 U.S.

1158 (1996)); Missouri (In re S.A.M., 703 S.W.2d 603 (Mo. Ct. App. 1986)); Nevada (In the Matter of the Parental

Rights as to N.J., 221 P.3d 1255, 1264 (Nev. 2009)); and Tennessee (In re Morgan, 1997 Tenn. App. LEXIS 818

(Tenn. Ct. App. 1997)). The following states have rejected the doctrine: Alaska (In re Adoption of Crews, 781 P.2d 973

(Alaska 1989), cert. denied sub nom, Jasso v. Finney, 494 U.S. 1030 (1990)); Arizona (Michael J. Jr. v. Michael J. Sr.,

7 P.3d 960 (Ariz. Ct. App. 2000)); Idaho (In re Baby Boy Doe, 849 P.2d 925 (Idaho 1993), cert. denied sub nom,

Swenson v. Oglala Sioux Tribe, 510 U.S. 960 (1993)); Illinois (In re Adoption of S.S., 662 N.E.2d 832 (Ill. 1993)); Iowa

(Iowa Code §232B.5 (2011)); Kansas (Matter of A.J.S., 204 P.3d 543 (Kan. 2009)); Michigan (In re Elliott, 554

N.W.2d 32 (Mich. Ct. App. 2000)); Minnesota (In re Welfare of S.N.R., 617 N.W.2d 77 (Minn. Ct. App. 2000));

Montana (In re Adoption of Riffle, 922 P.2d 510 (Mont. 1996)); New Jersey (In re Adoption of a Child of Indian

Heritage, 543 A.2d 925 (N.J. 1988)); New York (In the matter of Baby Boy C. Jeffrey A., 805 N.Y.S.2d 313 (N.Y. App.

2005)); North Dakota (Hoots v. K.B.(In re A.B.), 663 N.W.2d 625 (N.D. 2003) cert. denied, 541 U.S. 972 (2004));

Oklahoma (Matter of Baby Boy L., 103 P.3d 1099 (Okla. 2004)); South Dakota (Matter of Adoption of Baade, 462

S.W.2d 485 (S.D. 1990)); Utah (In re D.A.C., 933 P.2d 993 (Utah Ct. App. 1997)); Washington (Rev. Code Wash.

§13.34.040(3)); and Wyoming (S.N.K. v State, 78 P.3d 1032 (Wyo. 2005)). In California the state supreme court has

not ruled on the issue and the lower courts are divided. In re Alicia S. 76 Cal. Rptr 2d 507 (Ct. App. 1998) (rejecting

doctrine); In re Bridget R., 49 Cal. Rptr 2d 507 (Ct. App. 1996) (accepting doctrine and finding it necessary for

constitutionality of the ICWA).

Atwood, supra note 2 at 204; see In re: James Ronald Hampton and Jan Harris Milz Hampton, 658 So.2d 331, 336337 (Ct. App. La. 1995), cert. denied, 517 U.S. 1158 (1996) (court determined that even if it applied the ICWA and did

not terminate Indian mother’s rights, the child would not be raised in an Indian family because the Indian mother had

few ties with her Indian heritage).

Id. at 206-207, 209; see, e.g., In the Matter of the Parental Rights as to N.J., 221 P.3d 1255 (Nev. 2009) (court

applied the existing Indian family doctrine in termination proceeding in which non-Indian mother objected and Indian

father and tribe did not object); In re: James Ronald Hampton and Jan Harris Milz Hampton, 658 So.2d 331, 336-337

(Ct. App. La. 1995), cert. denied, 517 U.S. 1158 (1996) (court applied the existing Indian family doctrine because it

found the child’s father was unknown and her mother was a member of the Cheyenne River Sioux Tribe who had not

lived on the reservation since she was a child and did not maintain ties with her Indian heritage; the child was placed

with a non-Indian family and the court determined application of the ICWA would not result in the child being raised in

an Indian family); S.A. v. E.J.P., 571 So.2d 1187 (Ala. App. 1990) (court applied the existing Indian family doctrine

when child was illegitimate, non-Indian mother placed child for adoption, and Indian father had had little contact with

the child).

Matter of the Adoption of Baby Boy L., 643 P.2d 168, 175 (Kan. 1982).

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The Indian Child Welfare Act (ICWA): A Legal Overview

Indian mother voluntarily places the child for adoption.26 In Ex Parte C.L.J.,27 the Alabama Court

of Civil Appeals explicitly limited the doctrine to those circumstances and declined to apply the

doctrine to a child whose mother did not obtain membership in her tribe until after the child had

been removed from her custody and it was clear the state was going to move to terminate her

parental rights. Even though the child had not been raised in an Indian family, the court held the

ICWA applied. In contrast, the Kentucky Supreme Court applied the doctrine to a proceeding

involving a child who was a ward of the tribal court but who had lived with a non-Indian family

for years.28 The court gave no reason as to why the tribal court would not continue to have

exclusive jurisdiction over the child. Indiana, Louisiana, Missouri, and Tennessee courts apply it

even when the mother is Indian.29 In In re: James Ronald Hampton,30 the Louisiana supreme

court applied the existing Indian family doctrine to deprive an Indian mother of her rights under

the ICWA to revoke her consent to a voluntary adoption by a non-Indian family. Nevada courts

have determined to apply the existing Indian family doctrine on a “case-by-case basis to avoid

results that are counter to the ICWA’s policy goal of protecting the best interest of a Native

American child.”31

The existing Indian family doctrine appears to be on the decline. The Kansas and South Dakota

supreme courts, initially leading courts in adopting the doctrine, have since rejected it.32

Washington, Minnesota, Oklahoma, Wisconsin, and Iowa have rejected it through legislation.33

Adoptions Under the ICWA

To counter the high rate at which states were removing Indian children from their families and

Indian communities, the ICWA provides uniform and heightened standards for involuntarily

terminating parental rights, preferences for placing Indian children in Indian adoptive homes, and

procedural protections for parents and Indian tribes in state court proceedings.

Termination of Parental Rights

The termination of parental rights occurs when the parent-child relationship is legally severed.

Termination can be voluntary, such as when parents consent to adoption, or involuntary, upon a

finding of abandonment, neglect, or abuse of the child. Upon termination of parental rights, a

child is available to enter a parent-child relationship with adoptive parents.

Ex Parte C.L.J., 946 So.2d 880 (Ala. Civ. App. 2006).

Id.

Rye v. Weasel, 934 S.W.2d 257 (Ky. 1996).

Matter of Adoption of T.R.M., 525 N.E.2d 298 (Ind. 1988); In re: James Ronald Hampton and Jan Harris Milz

Hampton, 658 So.2d 331 (La. 1995); C.E.H. v. R.H., 8837 S.W.2d 947 (Mo. Ct. App. 1992); In re: Morgan, 1997

Tenn. App. LEXIS 818 (Tenn. App. 1997).

In re: James Ronald Hampton, 658 So.2d 331 (La. 1995).

In the Matter of the Parental Rights as to N.J., 221 P.3d 1255, 1264 (Nev. 2009).

Matter of A.J.S., 204 P.3d 543 (Kan. 2009); Matter of Adoption of Baade, 462 S.W.2d 485 (S.D. 1990).

R.C.W. §26.33.040(1)(a); Minn. Stat. Ann. §260.771; Okla. Stat. Ann. Tit. 10, §40.1; Wisc. Stat. Ann.

§938.028(3)(a); Iowa Code §232B.5(2).

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The Indian Child Welfare Act (ICWA): A Legal Overview

The ICWA does not restrict a parent’s ability to voluntarily terminate his or her parental rights. It

limits the circumstances under which state courts may terminate parental rights involuntarily.

Because Congress found that frequently states were terminating the parental rights of Indian

parents based on biased evidence of neglect and abandonment, Section 1912(f) of the ICWA

establishes the evidence that state courts must consider, the standard of proof, and the substantive

standard that the evidence must establish in order for a state court to involuntarily terminate

parental rights. A court must find “beyond a reasonable doubt,” based on evidence which must

include expert testimony, that “the continued custody of the child by the parent or Indian

custodian is likely to result in serious emotional or physical damage to the child.”34 The “beyond

a reasonable” doubt standard is higher than the “clear and convincing evidence” standard required

for due process and employed by the states in parental termination proceedings,35 and is

“designed to fulfill [the] ICWA’s goal of ending practices by state social welfare personnel that

result in removal of Indian children from their homes based on nonconformity with non-Indians’

stereotypes of what a proper family should be.”36

The BIA Guidelines explain that removal of an Indian child from his or her family “must be based

on competent testimony from one or more experts qualified to speak specifically to the issue of

whether continued custody by the parents or Indian custodians is likely to result in serious

physical or emotional damage to the child.”37 In requiring expert witness testimony by a witness

with relevant experience or education, Section 1912 seeks to counter the bias of non-Indians

against Indian communities, families, and circumstances cited in the ICWA.38 The House Report

from the Committee on Interior and Insular Affairs explained the need for these standards with

statistical evidence that physical abuse existed in just 1% of the cases in which an Indian child

was removed from the family.39 In the remaining 99% of the cases, the state gave vague reasons

such as “neglect” or “social deprivation” or presented evidence that somehow living with the

parents damaged the child emotionally.40 By imposing strict standards and requiring expert

testimony, the ICWA seeks to limit the circumstances in which Indian children are removed from

their homes to those that present a real danger to the child.

Most state courts do not require expert testimony when the evidence justifying removal of the

child is “culturally neutral.”41 Therefore, a state court will not get expert testimony if the basis for

removal is physical abuse such as shaken baby syndrome or newborn drug addiction.42

In Adoptive Couple v. Baby Girl, the Supreme Court determined that Section 1912(f) does not

apply to the termination of a parent’s rights when the parent never had custody.43 In this case, the

25 U.S.C. §1912(f).

Atwood, supra note 2 at 176-177; see also, In the Matter of the Parental Rights as to N.J., 221 P.3d 1255, 1260

(Nev. 2009) (discussing differences between the state standard and the ICWA standard).

See H.Rept. 95-1386, supra note 3 at 10; Cohen, supra note 18 at §11.04[4].

BIA Guidelines, supra note 12, at 65,953.

Cohen, §11.04[4]; Cynthia R. Mabry and Lisa Kelly, Adoption Law: Theory, Policy, and Practice (2006) 399

(Adoption Law), quoting Matter of Welfare of B.W., 454 N.W.2d 437 (Minn. App. 1990).

H.Rept. 95-1386, supra note 3 at 10.

Id.

Atwood, supra note 2 at 178.

Id.

133 S.Ct. 2552, 2560 (2013).

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The Indian Child Welfare Act (ICWA): A Legal Overview

biological mother, who is non-Indian, was not married to the biological father, who is a member

of the Cherokee Nation of Oklahoma.44 During the pregnancy, the biological father indicated

informally that he would relinquish his parental rights rather than pay child support.45

Unbeknownst to the biological father, the biological mother then decided to place the child for

adoption with a non-Indian couple in South Carolina.46 The biological father first learned of the

adoption when the child was four months old when he was served with papers to finalize the

adoption.47 He immediately contested the adoption in the South Carolina court.

The South Carolina supreme court upheld the decision of the family court that Section 1912(f)

applied, which meant that the burden was on the adoptive couple to establish beyond a reasonable

doubt that the father’s custody of the child would result in serious emotional or physical harm to

the child.48 The state courts determined that the adoptive parents had not met their burden. The

adoptive couple appealed and the Supreme Court reversed. The Court held that Section 1912(f)

did not apply because it required proof that “continued custody” of the biological father would

harm the child.49 However, the Court wrote that the father never had physical or legal custody of

the Indian child.50 Therefore, Section 1912(f) did not apply to bar termination of the biological

father’s rights.51

The ICWA’s Placement Preferences

In the interest of maintaining Indian children within the Indian community and tribe, section 1915

establishes the order of preference for placement of Indian children that state courts must follow.

Indian tribes may alter the order of preference by resolution.52

Section 1915(a) provides that in “any adoption proceeding” in a state court, “a preference shall be

given, in the absence of good cause to the contrary, to a placement with (1) a member of the

child’s extended family; (2) other members of the Indian child’s tribe; or (3) other Indian

families.”53 By its terms, Section 1915 applies to all adoptions, voluntary and involuntary. Some

view these preferences as a departure from the general federal policy of disfavoring race

matching in adoptions and foster placements.54

The BIA Guidelines identify the following considerations for determining good cause: the request

of the parents or the child, if the child is of sufficient age; “the extraordinary physical or

emotional needs of the child as established by testimony of a qualified expert witness,” and the

Id. at 2558.

Id.

Id. at 2559.

Id. at 2560.

Id. at 2560, 2561-62 (noting that under state law, legal custody was solely with the mother).

Id. at 2562.

25 U.S.C. §1915(c).

25 U.S.C. §1915(a).

Atwood, supra note 2 at 185-193; Adoption Law, supra note 43 at 411-413 (explaining that the federal Interethnic

Adoption Provisions, Section 1808 of P.L. 104-188, prohibit placement agencies from denying any individual the

opportunity to be an adoptive or foster parent on the basis of race).

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The Indian Child Welfare Act (ICWA): A Legal Overview

unavailability of suitable families for placement after “diligent” search.55 The party seeking to

avoid the statutory preferences bears the burden of establishing good cause.56 The states are

divided on whether the best interests of the child constitute good cause to depart from the

placement preferences.57 Those state courts that find good cause based on the child’s best interests

generally place greater importance on the child’s permanent placement,58 while those state courts

that reject the child’s best interests as a basis for a good cause finding generally place greater

importance on the child’s identity as an Indian and the tribe’s interest in that identity.59

In Adoptive Couple, the Supreme Court wrote that the ICWA’s placement preferences for

adoption placements apply only when there are multiple parties seeking to adopt the Indian

child.60 In that case, the ICWA placement preferences did not apply because no parties other than

the non-Indian couple were seeking to adopt the Indian child.

Procedural Protections

The House Report from the Committee on Interior and Insular Affairs stated point blank: “[t]he

decision to take Indian children from their natural homes is, in most cases, carried out without

due process of law.”61 One commentator has stated that the ICWA provides greater procedural

protections for parents, tribes, and Indian custodians than are provided to non-Indian parents.62

These protections are designed to ensure that parents, tribes, and Indian custodians are fully

informed and may participate in state court proceedings, and that federal courts may review state

court judgments.

Consent

In response to the conclusion by Congress that states were coercing waivers of parental rights and

obtaining consent from uninformed parents, Section 1913(a) of the ICWA requires that in cases of

voluntary placement in foster care or voluntary termination of parental rights, consent will not be

valid unless it is in writing, recorded before a judge, and accompanied by a certificate from the

judge that the “the terms and consequences of the consent were fully explained in detail and were

fully understood” by the consenting person.63 Section 1913(a) requires also that the court must

certify that the parent understood the explanation, either in English or as translated in a language

he or she did understand.64 Consent given within ten days after birth of a child is not valid.65

BIA Guidelines, supra note 12 at 67,594.

Id.

Atwood, supra note 2 at 228.

Id. at 228-229. See also Christine Metteer, Hard Cases Making Bad Law: The Need for Revision of the Indian Child

Welfare Act, 38 Santa Clara L. Rev. 419, 445 (1998) (Metteer) (citing In re Adoption of F.H., 851 P.2d 1361, 1365

(Alaska 1993) as an example of a court finding good cause for deviation from the ICWA’s placement preferences

partly based on avoiding uncertainty in favor of adoption).

Metteer, id. at 447 (citing In re Custody of S.E.G., 521 N.W.2d 357, 365 (Minnesota 1994) as rejecting the good

cause exception based simply on the child’s best interests and considering cultural needs in the placement).

133 S.Ct. 2564.

H.Rept. 95-1386, supra note 3 at 11.

Atwood, supra note 2 at 174.

25 U.S.C. §1913(a).

Id.

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The Indian Child Welfare Act (ICWA): A Legal Overview

The ICWA also gives Indian parents opportunity to withdraw their consent. Parents of an Indian

child may withdraw their consent for termination of parental rights at any time before the final

decree of termination or adoption.66 Upon withdrawal of consent, the child must be returned to

the parent.67 Even after the final decree of termination or adoption has been entered, the parents

have two years to withdraw consent and petition the court to vacate the decree on the ground that

his or her consent was obtained through fraud or duress.68 Upon a finding of fraud or duress, the

court shall vacate the decree and return the child to the parent.69 By providing that parents may

withdraw their consent and petition the court to vacate the adoption upon an allegation of fraud or

duress, the ICWA creates incentives to ensure that parents give their consent knowingly and

freely. However, these provisions also generate uncertainty about the security and finality of

adoptions of Indian children.

Based on all these procedural protections, one commentator has stated that Indian birth parents

are afforded more procedural protections than non-Indian birth parents in voluntary termination

proceedings.70

Notice

An important element of due process is notice of the action that the state is proposing to take.71

The House Report from the Committee on Interior and Insular Affairs pointed to the importance

of notice in the context of Indian children.

The conflict between Indian and non-Indian social systems sometimes operates to defeat due

process. The extended family provides an example. By sharing the responsibility of child rearing,

the extended family tends to strengthen the community’s commitment to the child. At the same

time, however, it diminishes the possibility that the nuclear family will be able to mobilize itself

quickly enough when an outside agency acts to assume custody. Because it is not unusual for

Indian children to spend considerable time away with other relatives, there is no immediate

realization of what is happening—possibly not until the opportunity for due process has slipped

away.72

Section 1912(a) provides that in an involuntary proceeding in state court, the party seeking

termination of parental rights must notify the parent and the child’s tribe by return receipt

registered mail.73 If the identity or location of the Indian child’s parent is not known, the party

seeking foster care placement or termination of parental rights must notify the Secretary of the

Interior (Secretary).74 The Secretary has 15 days in which to notify the parents.75 The court cannot

(...continued)

Id.

25 U.S.C. §1913(b).

Id.

25 U.S.C. §1913(c).

Id.

Atwood, supra note 2 at 174.

Goldberg v. Kelly, 397 U.S. 254, 268 (1970).

H.Rept. 95-1386, supra note 3 at 11.

25 U.S.C. §1912(a).

Id.

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The Indian Child Welfare Act (ICWA): A Legal Overview

hold a proceeding for ten days after the parent or Indian custodian and tribe or the Secretary

received notice.76 State courts must grant up to 20 additional days upon request from the parent,

Indian custodian, or tribe before proceeding.77 Section 1912(a) is intended to provide meaningful

notice to both the parents and the tribes so that they may participate in the proceedings and, if

they wish, challenge the involuntary termination of parental rights or the removal of the child

from the family.

Right to Intervene

Section 1911(c) establishes the right of the Indian child’s Indian custodian or tribe to intervene in

any state court proceeding for termination of parental rights at any point in the proceeding.78 This

right of intervention applies in both involuntary and voluntary terminations. However, because

the ICWA requires that tribes get notice of involuntary proceedings only, tribes are more likely to

know about, and therefore intervene in, involuntary proceedings than in voluntary proceedings.

The House Report from the Committee on Interior and Insular Affairs noted that frequently

Indian parents leave their children with members of their extended families.79 Under 1911(c) such

a family member has a right to intervene, even though he or she has no recognized legal

relationship with the child. Section 1911(c) recognizes the importance of that relationship and

ensures that such a family member, as well as the child’s tribe, has the opportunity to be a party to

the termination proceedings. Granting Indian custodians and tribes the right to intervene as parties

provides another mechanism that increases the likelihood that Indian children will remain in

Indian communities and maintain ties to their tribes.

Right to Counsel

For indigent parents or indigent Indian custodians challenging the removal of a child or the

termination of parental rights, the ICWA provides the right to counsel. Section 1912(b) provides

that when a court determines indigence, the parent or Indian custodian has a right to a courtappointed counsel in any placement or termination proceeding.80 A state court has discretion to

appoint counsel for the child if it determines it to be in the best interest of the child.81 If state law

does not provide for appointment of counsel, the state court must notify the Secretary of the

Interior who will pay reasonable fees and expenses upon certification from the presiding judge.82

(...continued)

Id.

25 U.S.C. §1911 (c).

H.Rept. 95-1386, supra note 3 at 10, 11.

25 U.S.C. §1912(b).

Id.

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The Indian Child Welfare Act (ICWA): A Legal Overview

Reports and Other Documents

One of the complaints voiced in the legislative history was that state court judges were making

decisions about Indian children based on evidence that the Indian parties could not see.83 Section

1912(c) seeks to remedy this by providing any party to a foster care placement or termination of

parental rights proceeding with the right to examine “all reports or other documents filed with the

courts upon which any decision with respect to such action may be based.”84 This provision seeks

to ensure that the court bases its decision on evidence in the record filed with the court that all

parties have had an opportunity to examine.

Remedial Services and Rehabilitation Programs

The ICWA requires that before a state court terminates parental rights, the state must take steps to

try to maintain the Indian family. Section 1912(d) requires the party seeking termination of the

parental rights to demonstrate that “active efforts have been made to provide remedial services

and rehabilitative programs designed to prevent the breakup of the Indian family and that these

efforts have proved unsuccessful” before terminating parental rights.85 Such active efforts should

extend to the extended family and the tribe and may include “providing transportation, arranging

appointments with providers, assisting with childcare, and taking other rehabilitative measures,

optimally in collaboration with the child’s tribe.”86 This provision is intended to protect the

integrity of Indian families and increases the likelihood that a child will remain in the Indian

community by requiring that states involve the extended family and the tribe.

In Adoptive Couple, the state supreme court blocked the termination of the father’s parental rights

because no active efforts had been made to “prevent the breakup of the Indian family.”87 The

Supreme Court reversed, holding that Section 1912(d) does not apply “when an Indian parent

abandons an Indian child prior to birth and that child has never been in the Indian parent’s legal or

physical custody.” The Court wrote that “[i]n such a situation, the ‘breakup of the Indian family’

has long since occurred, and §1912(d) is inapplicable.”88

Federal Court Review

The ICWA provides for federal court review of state court decisions. Section 1914 states that a

child who is the subject of a state court proceeding, the parent or Indian custodian, or the child’s

tribe “may petition any court of competent jurisdiction” to invalidate an action based on a

violation of the ICWA’s jurisdictional provisions, procedural provisions, or consent provisions.89

H.Rept. 95-1386 22 (1978).

25 U.S.C. §1912(c).

25 U.S.C. §1912(d).

Atwood, supra note 2 at 176.

133 S.Ct. at 2562.

Id.

25 U.S.C. §1914 provides for invalidation based on violations of §§1911, 1912, or 1913. Section 1911 governs

jurisdiction of tribal and state courts and provides a right of intervention for Indian custodians and tribes and for full

faith and credit of tribal court decrees. Section 1912 provides procedural protections: notice; counsel; examination of

reports; remedial service and rehabilitation programs; and standards of proof. Section 1913 governs consent by parents

to voluntary termination of parental rights and foster care placement.

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The Indian Child Welfare Act (ICWA): A Legal Overview

A “court of competent jurisdiction” includes a federal court.90 Thus, federal courts may review

and invalidate state court decrees, upon a showing that the state court improperly exercised

jurisdiction, failed to allow the Indian custodian or tribe to intervene, failed to give full faith and

credit to a tribal court decree, failed to respect the procedural rights of the Indian custodian or

tribe, or failed to obtain informed and knowing consent from the parents. However, when tribes

or Indian parties have tried to use federal courts to invalidate state court decisions rendered in

violation of the ICWA, they have met with mixed results.91

Federal courts may review tribal court decrees, but only after the party seeking review has

exhausted his or her remedies in the tribal court.92 Thus, a party seeking review of a tribal court

decree must appeal the challenged decision through the tribal court system and obtain a decision

from the highest tribal court before challenging the decree in federal court.

Foster Care Placement Under the ICWA

Foster care is the term applied to the temporary placement of a child with a licensed caregiver

when a child is removed, voluntarily or involuntarily, from his or her home and made a ward of

the state or tribe. The foster care giver has day-to-day responsibility for the child and the state or

tribe makes the legal decisions for the child.

Section 1912(e) establishes the standard of proof, the type of evidence, and the substantive

standard that state courts must apply in removing an Indian child from his or her home and

placing the child in foster care. Section 1912(e) provides that for involuntary proceedings, state

courts must find, based on “clear and convincing evidence,” including the testimony of qualified

expert witnesses, that “continued custody of the child by the parent or Indian custodian is likely

to result in serious emotional or physical damage to the child” before placing the child in foster

care.93 The “clear and convincing evidence” standard is higher than the “preponderance of the

evidence” standard necessary for due process and employed by most states in foster care

placement proceeding for non-Indian children.94 The BIA Guidelines provide that “[e]vidence that

only shows the existence of community or family poverty, crowded or inadequate housing,

alcohol abuse, or non-conforming social behavior does not constitute clear and convincing

evidence that continued custody is likely to result in serious emotional or physical harm to the

child.”95 Rather, in order to meet the standard, “the evidence must show the existence of

particular conditions in the home that are likely to result in serious emotional or physical damage

to the particular child.”96

Section 1915(b) provides that for foster care or preadoptive placement, a state court must place

the child “in reasonable proximity to his or her home,” “in the least restrictive setting which most

Doe v. Mann, 415 F.3d 1038, 1046-1047 (9th Cir. 2005).

See, e.g., Kiowa Tribe v. Lewis, 777 F.2d 587 (10th Cir. 1985) (declining review of state court judgment because

ICWA did not affect full faith and credit due state court decisions); Doe v. Mann, 415 F.3d 1038 (9th Cir. 2005), cert.

denied, 126 S.Ct. 1909 (2006) (finding section 1914 authorized federal court review of state court decision).

Boozer v. Wilder, 381 F.3d 931 (9th Cir. 2004).

25 U.S.C. §1912(e).

Atwood, supra note 2 at 177.

BIA Guidelines, supra note 12 at 67,593.

Id.

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The Indian Child Welfare Act (ICWA): A Legal Overview

closely approximates a family, and in which his special needs, if any, may be met.”97 These

standards are similar to the standards applied under state law for foster placement of non-Indian

children. The ICWA, however, provides a hierarchy of preferences. Placement should be: with a

member of the child’s extended family; a foster home licensed, approved, or specified by the

child’s tribe; an Indian foster home licensed or approved by an authorized non-Indian licensing

authority; or, an institution for children approved by an Indian tribe or operated by an Indian

organization which has a program suitable to meet the child’s needs.98 Like the preferences for

adoption, these preferences make it more likely that Indian children will not be removed from an

Indian environment.

Parents and tribes enjoy the same procedural rights in foster care placement proceedings as they

have in parental rights termination proceedings.

The ICWA’s Jurisdictional Scheme

By recognizing both exclusive and concurrent tribal court jurisdiction over custody proceedings

involving Indian children, the ICWA provides an important mechanism by which tribes may

participate in the placement of Indian children. The ICWA recognizes that tribal courts have

exclusive jurisdiction over child custody proceedings involving Indian children who are residing

on the reservation or who are wards of the tribal court, regardless of residency. It recognizes that

tribal courts have concurrent jurisdiction over child custody proceedings involving children who

reside off the reservation. To ensure that other jurisdictions respect tribal court orders, the ICWA

provides that “[t]he United States, every State, every territory or possession of the United States,

and every Indian tribe shall give full faith and credit to the public acts, records and judicial

proceedings of any Indian tribe applicable to Indian child custody proceedings to the same extent

that such entities give full faith and credit to the public acts, records and judicial proceedings of

any other entity.”99

Exclusive Jurisdiction

Before Congress passed the ICWA, the U.S. Supreme Court recognized that tribal courts have

exclusive jurisdiction over adoptions involving tribal members residing on the reservation. In

Fisher v. District Court of the Sixteenth Judicial District of Montana,100 members of the Northern

Cheyenne Tribe (Tribe) had gained custody of a member child through a tribal court

proceeding.101 The members sought to adopt the child through a state court proceeding. The

biological mother of the child, who was also a member of the Tribe, moved to dismiss the state

court proceeding on the ground that the tribal court had exclusive jurisdiction over the

proceeding.102 The Supreme Court stated the test for whether the state court could exercise

jurisdiction was at the least, “whether the state action infringed on the right of the reservation

25 U.S.C. §1915(b).

Id.

25 U.S.C. §1911(d).

100

Fisher v. District Court of the Sixteenth Judicial District of Montana, 424 U.S. 382 (1976).

101

Id. at 383.

102

Id. at 383-384.

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The Indian Child Welfare Act (ICWA): A Legal Overview

Indians to make their own laws and be ruled by them.”103 The Court concluded that the tribal

court had exclusive jurisdiction owing to the Tribe’s right to govern itself independent of state

law.104 In response to the argument that the Tribe could not divest the state of jurisdiction it

exercised over tribal adoptions prior to organization of the Tribe in 1935, the Court noted the

tribal courts were established pursuant to the Indian Reorganization Act. If the state courts in fact

exercised jurisdiction over tribal adoptions, that jurisdiction has been preempted by federal

statute.105 Finally, the Court rejected the members’ assertion that depriving them of access to state

courts constituted impermissible racial discrimination, noting that the tribal court’s exclusivity

derives from the “quasi-sovereign status” of the Tribe under federal law.106 “Moreover, even if a

jurisdictional holding occasionally results in denying an Indian plaintiff a forum to which a nonIndian has access, such disparate treatment of the Indian is justified because it is intended to

benefit the class of which he is a member by furthering the congressional policy of Indian selfgovernment.”107

The ICWA recognizes this exclusive jurisdiction over child custody proceedings involving Indian

children residing or domiciled on the reservation.108 It explicitly provides in section 1911(a) that

“[a]n Indian tribe shall have jurisdiction exclusive as to any State over any child custody

proceeding involving an Indian child who resides or is domiciled within the reservation of such

tribe.”109 Thus, a parent of a child residing or domiciled on the reservation cannot circumvent

tribal jurisdiction by going to state court.110 Section 1911(a) provides for exclusive tribal court

jurisdiction over Indian children who are wards of the tribal court, regardless of the child’s

residence or domicile.111

Section 1911(a) provides an exception for states in which a federal law, such as P.L. 280,112 vests

civil jurisdiction over the reservation in the state. Under Section 1918(a), tribes in P.L. 280 states

may reassume exclusive jurisdiction over child custody proceedings upon approval by the

Secretary of the Interior (Secretary) of a petition for reassumption.113 Reassumption, however, is

not necessary in order for tribes in P.L. 280 states to exercise concurrent inherent jurisdiction over

child custody proceedings114

103

Id. at 386 (internal quotations and citations omitted).

Id. at 387.

105

Id. at 390.

106

Id.

107

Id. at 390-391.

108

25 U.S.C. §1911(a).

109

25 U.S.C. §1911(a).

110

Atwood, supra note 2 at 170.

111

25 U.S.C. §1911(a).

112

28 U.S.C. §1360. P.L. 280 “mandated the transfer of civil and criminal jurisdiction over ‘Indian country’ from the

federal government to the governments of five states [(California, Minnesota, Nebraska, Oregon, and Wisconsin)], and

permitted other states to assume such jurisdiction voluntarily. In 1958, Alaska was added to the list of mandatory

Public Law 280 jurisdictions.” Native Village of Venetie v. Alaska, 944 F.2d 548, 559-560 (9th Cir. 1989). P.L. 280,

therefore, vests jurisdiction over custody proceedings involving Indian children residing on a reservation in state court.

113

25 U.S.C. §1918(a).

114

Atwood, supra note 2 at 171. The Alaska state supreme court and the federal Court of Appeals for the Ninth Circuit

have held that Alaska Native village tribal courts have inherent original jurisdiction, concurrent with the state’s

jurisdiction, to initiate child custody proceedings for Alaska Native children residing off a reservation. State of Alaska

v. Native Village of Tanana, 249 P.3d 734 (Alaska 2011); John v. Baker, 982 P.2d 738 (Alaska 1999); Native Village of

Venetie, 944 F.2d at 561-562.

104

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The Indian Child Welfare Act (ICWA): A Legal Overview

For the ICWA, the child’s domicile or residence is determined, under federal law, by the domicile

or residence of the parents. In Mississippi Band of Choctaw v. Holyfield,115 the only Supreme

Court case to consider the ICWA, the Court considered whether the tribal court had exclusive

jurisdiction over the voluntary termination of parental rights and subsequent adoption of twin

Indian children whose biological parents resided on the reservation but who purposefully left the

reservation so that the children would not be born on the reservation, thereby avoiding the

ICWA’s reach. The Court held that the tribal court had exclusive jurisdiction over the

proceedings. The state supreme court had held that domicile or residence was a matter of state

law and that under state law, the children were never domiciled or residing on the reservation.

The Supreme Court reversed, holding that Congress intended that domicile or residence would be

determined by a uniform federal standard, and the standard looked to the residence of the parents

to determine the residence of the children. “Tribal jurisdiction under § 1911(a) was not meant to

be defeated by the actions of individual members of the tribe, for Congress was concerned not

solely about the interests of Indian children and families, but also about the impact on the tribes

themselves of the large number of Indian children adopted by non-Indians.”116 The Court noted,

“[t]he protection of this tribal interest [in Indian children] is at the core of ICWA, which

recognizes that the tribe has an interest in the child which is distinct from but on parity with the

interest of the parents.”117

Concurrent Jurisdiction

The ICWA ensures concurrent tribal-state jurisdiction by providing that in state child custody

proceedings involving Indian children residing off the reservation, state courts must transfer the

proceeding to tribal court upon petition of the Indian child’s parent, Indian custodian, or tribe,

unless either parent objects, the tribal court declines jurisdiction, or good cause is shown.118 The

Supreme Court said in Holyfield that when there is concurrent jurisdiction, tribal court

jurisdiction is presumed.119 The fact that either parent may object to transfer to tribal court means

that state courts frequently hear cases involving children of mixed heritage.120

The ICWA does not define good cause and the legislative history indicates that Congress left it

undefined intentionally so that state courts would have flexibility in making good cause

determinations.121 The BIA Guidelines identify the following circumstances as constituting good

cause: the child’s tribe lacks a tribal court; the petition is filed when the proceeding is at an

advanced stage and the petitioner did not file the petition promptly; an Indian child older than

twelve objects; presenting evidence in tribal courts would present an undue hardship on parties or

witnesses; or a child older than five, whose parents are unavailable, has had little or no contact

with the tribe or its members.122 Courts are divided on whether to consider the child’s best interest

in determining good cause.123

115

490 U.S. 30 (1989).

Id. at 49.

117

Id. at 52 (internal quotations and citation omitted).

118

25 U.S.C. §1911(b).

119

Holyfield, 490 U.S. at 36.

120

Atwood, supra note 2 at 173; see cases cited supra note 24.

121

BIA Guidelines, supra note 12 at 67,584, citing S.Rept. 95-597, 95th Cong., 1st Sess. 17 (1977).

122

Id.

123

Atwood, supra note 2 at 173-174, citing In re Appeal in Maricopa County Juvenile Action No. JS-8287, 828 P.2d

(continued...)

116

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The Indian Child Welfare Act (ICWA): A Legal Overview

Proposed Amendments to the ICWA

Over the years, there have been many bills introduced in Congress to amend the ICWA.124 In

general, the amendments have been aimed at ensuring tribal notice and the opportunity for limited

tribal intervention in voluntary adoptions,125 restricting the time in which parents may revoke

their consent to voluntary termination of their rights,126 and providing criminal penalties for

misrepresentation regarding an Indian child.127 In addition, many of the proposed amendments

have clarified when tribal courts have exclusive jurisdiction; extended exclusive jurisdiction to

tribes with reservations located in P.L. 280 states and to tribes without reservations, including

tribes in Oklahoma; and, made clear that tribes in Alaska have jurisdiction concurrent with state

courts.128 Only one bill has been introduced to limit the applicability of the ICWA.129

There were no bills introduced in the 112th Congress to amend the ICWA, and no bills have been

introduced in the 113th Congress thus far.

Conclusion

The ICWA has achieved success in reducing the rate at which Indian children are removed from

their homes and the rate at which Indian children are placed in non-Indian homes.130 Nonetheless,

Indian children are still removed from their homes and placed in foster care at a rate higher than

that for non-Indian children.131 In 2008, Congress passed the Fostering Connections to Success

and Increasing Adoptions Act,132 which made tribes eligible for direct funding for foster care and

(...continued)

1245 (Ariz. Ct. App. 1991)(court considered best interests of the child); In re Robert T., 246 Cal. Rptr 168 (Ct. App.

1988) (same); In re Alexandria Y., 53 Cal. Rptr2d 679 (Cal. App. 1996)(same); In re Adoption of F.H., 851 P.2d 1361

(Alaska 1993) (same). See, e.g., Shageluk IRA Council v. State of Alaska, (S.Ct. Alaska March 18, 2009) (affirming

lower court decision not to transfer case to tribal court because lower court did not consider best interests of the child);

In re M.A., 40 Cal. Rptr. 3d 439 (Ct. App. 2006) (court did not consider best interests of the child).

124

See, e.g., H.R. 4733, 107th Cong. (2002); S. 1213, 106th Cong. (1999); H.R. 1082, 105th Cong. (1997); S. 569, 105th

Cong. (1997); H.R. 3275, 104th Cong. (1996); H.R. 3828, 104th Cong. (1996); H.R. 1448, 104th Cong. (1995); S. 1962,

104th Cong. (1995); S. 764, 104th Cong. (1995).

125

H.R. 4733, 107th Cong. (2002), §9, 10, 11; S. 1213, 106th Cong. (1999), §6-8; H.R. 1082, 105th Cong. (1997), §§6-8;

S. 569, 105th Cong. (1997), §6, 7, 8; H.R. 3828, 104th Cong. (1996), §6, 7, 8; S. 1962, 104th Cong. (1995), §6, 7, 8.

126

H.R. 4733, 107th Cong. (2002), §8; S. 1213, 106th Cong. (1999), §5; H.R. 1082, 105th Cong. (1997), §5; S. 569,

105th Cong. (1997), §5; H.R. 3828, 104th Cong. (1996), §5; S. 1962, 104th Cong. (1995), §5.

127

H.R. 4733, 107th Cong. (2002), §18; S. 1213, 106th Cong. (1999), §10; H.R. 1082, 105th Cong. (1997), §9; S. 569,

105th Cong. (1997), §10; H.R. 3828, 104th Cong. (1996), §9; S. 1962, 104th Cong. (1995), §9.

128

H.R. 4733, 107th Cong. (2002), §2(5),(6),(7); H.R. 1082, 105th Cong. (1997), §2; H.R. 3828, 104th Cong. (1996), §1;

S. 1962, 104th Cong. (1995), §2.

129

H.R. 3275, 104th Cong. (1996).

130

Atwood, supra note 2 at 193; Ann E. MacEachron, Nora S. Gustavsson, Suzanne Cross, Allison Lewis, The

Effectiveness of the Indian Child Welfare Act of 1978, 70 Social Service Review 451 (1996). MacEachron et al. report

that between 1975 and 1986, there was a 93% drop in adoption rates of Indian children and a 31% decrease in the

placement of Indian children in foster care. Id. at 457. They also report that the discrepancy between foster care

placement rates for Indians and non-Indians was smaller in 1986 than it was in 1975. Id. at 458.

131

Atwood, supra note 2 at 194.

132

P.L. 110-351, 110th Cong., 2d Sess. (2008).

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The Indian Child Welfare Act (ICWA): A Legal Overview

adoption assistance under Title IV-E of the Social Security Act,133 the act under which states

receive federal funding for foster placement and adoption assistance. It is too early to know the

results of this access to increased funding, but it may improve the tribes’ ability to protect their

children in a way that also protects the tribes.

Author Contact Information

(name redacted)

Legislative Attorney

[redacted]@crs.loc.gov, 7-....

133

42 U.S.C. §§601, 670-679a.

Congressional Research Service

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