An Overview

For more than 100 years between the mid-1800s and the second half of the 1900s, thousands of Indian children were taken from their families and placed first into boarding schools and later into non-native foster and adoptive homes. Through boarding schools, the government hoped to assimilate Indians into mainstream America. Misguided efforts to place Indian children into non-native families served much the same goal, and with similarly devastating consequences.

Generations of Indians who grew up in boarding schools and non-native families were stripped of their families, culture, and sense of belonging. Indian families whose children were placed in non-native settings also experienced the profound loss of their children, as well as the loss of being able to pass down traditions and shared history.

By the 1970s, many tribes had launched campaigns to regain control of their children's fate from entities outside the tribe-namely state and private social service agencies, and the Bureau of Indian Affairs. Through tribes' efforts, and efforts of sympathetic Indian organizations and child welfare professionals, the Indian Child Welfare Act (ICWA) became law in 1978.

The Purpose of ICWA

According to the National Indian Child Welfare Association, before ICWA was passed, the out-of-home placement rate for Indian children was 18 times higher than for other children. In addition, 85 percent of Indian children in foster care were placed in non-native homes or institutions. ICWA, supporters hoped, would stem the flow of Indian children away from their families and tribes.

Through ICWA, Indian tribes have authority to make decisions about the welfare, care, custody, and control of their tribes' children. In particular, tribes have sovereign rights and the legal power to say whether or not Indian children should be separated from their families and culture. In turn, public and private child welfare agencies have a different protocol to follow when Indian children come in contact with the child welfare system.

Agencies' Responsibilities

ICWA has two primary provisions. The first concerns what agencies must do prior to a child's entry into care, and when considering a foster or adoptive placement. Under ICWA, agencies must:

*provide remedial, culturally appropriate services for Indian families before a placement occurs;
*notify the child's tribe by registered mail of the child welfare proceeding;
*recognize the tribe's right to intervene in the case or assume jurisdiction over the case;
use expert witnesses to assess the need for placement; and
*follow stated placement preferences (see inset below) when identifying foster and adoptive parents.

ICWA Placement Preferences

1. Foster Care
a. Extended family
b. Tribally licensed, approved, or specified foster home
c. Tribally operated or approved institution that can meet the child's needs
2. Adoption
a. Extended family
b. Member of a child's tribe
c. Member of a different tribe

The second part of ICWA provided for Indian tribes to re-assume jurisdiction over child welfare matters-for instance, develop and implement juvenile codes, set up juvenile courts, and develop tribal-state agreements regarding child welfare services. Many tribes throughout the country provide a range of child welfare services to address their communities' child welfare needs.

To comply with ICWA, workers must identify every Indian child who enters the child welfare system at the earliest stage. When an Indian child is not identified until the termination phase, ICWA must still be followed and permanency planning can be seriously delayed.

The intent of ICWA is to guarantee tribes' right to participate in child welfare decisions affecting their tribal members, a historical right that was returned to tribes only 24 years ago. By following the steps of ICWA, agencies can help to assure that states, tribes, and Indian families achieve the best possible outcomes for Indian children.