Understanding The Indian Child Welfare Act
From the 1880s to the 1950s, numerous state and federal policies weakened or destroyed Indian tribal and family structures. In the late 19th and early 20th centuries, the federal government forced Indian children to leave their homes and tribes to attend boarding schools. The boarding school practice all too often resulted in permanently severing the connection between Indian children and their families and their tribes.
From 1958 to 1967 the Child Welfare League of America (CWLA) contracted with the Bureau of Indian Affairs through the Indian Adoption Project for purposes of placing Native American children with white families. This effort to assimilate the children into mainstream culture through the destruction of their families resulted in several generations of Indian children losing their identities. In a keynote speech on April 24, 2001, Shay Bilchik, the Director of the CWLA, apologized for the CWLA’s role in these adoptions stating, “No matter how well intentioned and how squarely in the mainstream this was at the time, it was wrong; it was hurtful; and it reflected a kind of bias that surfaces feelings of shame, as we look back with the 20/20 vision of hindsight.”
From the 1950s through the 1970s, child protection practices were prevalent that resulted in the needless removal of Indian children from their homes, often based solely on poverty because they neither understood nor respected the central role of tribes and extended families in protecting the best interests of Indian children.
Historically there have been a multitude of practices resulting in Indian children being removed from their reservations and homes, resulting in the deprivation of their connection to their family and tribes. While the methods have varied the results have been consistent, in adolescence, these children experienced alarming rates of chemical dependency, suicide, and mental illness. They, their families, and their tribes have never fully recovered from the broken relationships, broken ties to culture, and lost years.
Congress enacted the Indian Child Welfare Act (ICWA) in 1978 in response to the unwarranted removal of Indian children from their families and tribal communities in alarming numbers. In Minnesota from 1971-1972, 13% of all Indian Children (25% of Indian Children under age 1) were in adoptive homes and 90% of placements were in non-Native homes. These practices destroyed the child’s connection to their families and tribal community, resulting in irreparable harm to the child and devastating communities. Congress stated in 1978 that “the wholesale separation of Indian children from their families is perhaps the most tragic and destructive aspect of American Indian life today.” H.R. REP. 95-13896, at 9 (1978). Upon understanding the magnitude of the problem, the U.S. Congress passed the Indian Child Welfare Act.
Highlights of the Act include:
- Recognition of Tribal Sovereignty – reflected in jurisdictional mandates including the presumption that tribal courts are in the best position to make decisions regarding the interests of Indian children
- Preservation of Indian families – reflected in the provision of active efforts required to keep Indian families together, including providing at-risk families with social supports
- Tribal and family connectedness – reflected in the placement preferences, Indian children must be placed within their extended families or tribes if at all possible when are removed from their homes
Despite the protections of the ICWA, a disproportionate number of Indian children continued to be removed from their homes and placed in non-Indian homes. In 1993, American Indian leaders created the Indian Child Welfare Law Center to address this devastation. The ICWA Law Center is a non-profit, American Indian legal services organization committed to providing the highest quality of legal representation to Indian families throughout Minnesota involved in legal proceedings governed by the Indian Child Welfare Act and tribal code.
1. United States Code Title 25 – Indian Chapter 21 – Indian Child Welfare – PDF
2. Summary of ICWA Related Juvenile Protection Rules – PDF
3. BIA Guidelines for State Courts; Indian Child Custody Proceedings – PDF
4. MINNESOTA STATUTES 2013 260C – PDF
5. Minnesota Chapter 260.751 MN Indian Family Preservation Act – PDF
6. MN Case Law 1991 to Present – PDF
6a. Supreme Court Mississippi Band of Choctaw Indians v Holyfield 1989 – PDF
6b. Supreme Court case 570 South Carolina – PDF
7. 2007 Amendments to Tribal State Agreement changes – PDF
7a. 2007 Tribal State Agreement – PDF
8. Bulletin Minnesota Department of Human Services 04-68-10 – PDF
9. Minnesota Social Services Manual – PDF
10. ICWA – Active Efforts Best Practices (MN DHS) – PDF
11. Resources for professionals – PDF
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