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Indian Child
Welfare Act Law Center
Legal services and
advocacy for Indian families.
The Indian Child
Welfare Act (ICWA)
protects Indian children
and promotes stability
of Indian tribes
and families.
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Welfare Act Law Center
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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").

Why are Tribes and It's Members Treated Differently from Other Groups?

        Understanding why Tribes can be treated differently than other groups is to understand the history of the Federal Government's relationship to Tribes, and Tribes status as separate sovereigns from either Federal or State Government. Indian Tribes are sovereign entities whose existence pre-dates the United States Constitution. Cherokee Nation v. Georgia, 303 U.S. (5 Pet.) (1831). Tribes retain inherent sovereign powers to make their own laws and be ruled by them. See Williams v. Lee, 358 U.S. 217 (1959); Fisher v. District Court, 424 U.S. 382 (1976). Tribes sovereign powers are inherent powers retained from time immemorial not delegated powers from the Federal government. Worchester v. Georgia, 31 U.S. (Pet.) 515, 559 (1832); See also, Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982); Iron Crow v. Oglala Sioux Tribe, 231 F2d 89 (8th Cir. 1956). Prior to European contact, Indian Tribes had thriving cultures. Within each Tribe existed highly developed traditions governing child rearing practices and child protection systems including adoptions and extended family care for children. Tribes social systems existed and functioned very well. Every member of the family and extended family had a role in child rearing. If a parent was unable to care for a child another family member was designated by tradition to assume the parental role. Grandparents played a big role in rearing children in traditional culture. Tribal social system and culture became under attack with European contact especially under the past 200 years of Federal policies aimed at breaking up the traditional Indian family. The history of Federal policies and the Federal governmental dealings with Tribes is the foundation of the government to government relationship now in existence and the special obligations the Federal government holds to Tribes.

        The Supreme Court recognized Tribes as "domestic dependent nations" with a unique relationship existing between the Tribes and the Federal Government. Cherokee Nation, at 17. The relationship of the Federal government to Tribes is often described as a trust relationship or as the obligations a guardian holds to its ward. Cherokee Nation, at 17. See also, U.S. v. Kagama, 118 U.S. 375 (1886); U.S. v. Sandoval, 231 U.S. 28 (1913). The obligations under the trust relationship have evolved over the past 200 years through treaties (usually in exchange for land or precious minerals), Executive Orders, and Federal laws and policies.

        Because of the unique trust relationship, Congress can pass laws treating Tribes differently than other groups and not be in violation of the Due Process Clause of the 5th Amendment or traditional equal protection notions. Morton v. Mancari, 417 U.S. 535 (1974). Federal legislation with respect to Indian tribes is not based upon impermissible racial classifications, but derives from the special status of Indians as members of quasi-sovereign tribal entities. United States v. Antelope, 430 U.S. 641 (1977); Morton v. Mancari, 417 U.S. 535 (1974). See also, Washington v. Confederatd Bands and Tribes of the Yakima Indian Nation, 439 U.S. 463 (1979); Fischer v. District Court, 424 U.S. 382 (1976); Delaware Tribal Business Committee v. Weeks, 430 U.S. 73(1976). "Literally every piece of legislation dealing with Indian tribes and reservations, and certainly all legislation dealing with the BIA, sinlge[s] out for special treatment a constituency of tribal Indians living on or near reservations. If these laws, derived from historical relationships and explicitly designed to help only Indians, were deemed inviduous racial ddiscrimiantion, an entire Title of the United States Code ( 25 U.S. C.) would be effectively erased and the solemn commitment of the Government toward the Indians would b ejeapardized. See Simmons v. Eagle Seelatsee, 244 F. Sup. 808, 814 n. 13 (ED Wash. 1965) , aff'd, 384 U.S. 209 (1966)." Id. The preference is not a racial distinction. "The preference is not directed towards a 'racial' group consisting of 'Indians'; instead, it applies only to members of 'federally recognized' tribes. This operates to exclude many individuals who are racially to be classified as Indians. The distinction is political rather than racial in nature." Id, at f.n. 24. "As long as the special treatment can be tied rationally to the fulfillment of Congress' unique obligation toward the Indians, such legislative judgments will not be disturbed." Mancari, 417 U.S. 535 (1974). Therefore, based upon these well established principals of Federal Indian law, constitutional challenges to Indian Child Welfare Act based upon disparate treatment of parties in State Courts have not prevailed.xx

        The United States Constitution gives the Federal Government and not the separate states exclusive authority to regulate the affairs of Indian Tribes. U.S. Const., Art. I, Sec. 8, Cl. 3. Congress has plenary authority to pass laws regulating Indian Tribes. U.S. Wheeler, 435 U.S. 313 (1978); Lonewolf v. Hitchcock, 187 U.S. 553 (1903). States are generally pre-empted from exercising authority over Indian Tribes. Worchester v. Georgia, 31 U.S. (6 Pet.) 515, 559 (1832); Williams v. Lee, 358 U.S. 217 (1959).

xx In re Eleanor Armell, 550 N.E.2d 1060 (Ill.App.Ct. 1990); Matter of Miller, 451 N.W.2d 576 (Mich.App. 1990: In re Appeal of Pima County Juvenile Action, S-903, 635 P.2d 187 (Ariz. Ct. Appeals 1981), cert. denied, 455 U.S. 1007 (1982); Matter of Two Babies, (Okla. Dist. Ct. # JR 79-1121 1980); In re D.L.L. & C.L.L., 291 N.W.2d 278 (S.D. 1980).
Government to Government Relationship - the Bureau of Indian Affairs

        The Bureau of Indian Affairs (hereinafter BIA) is the main Federal Governmental agency charged with carrying out the trust obligations of the Federal Government. The BIA is under the Department of the Interior. The BIA has many programs to serve Tribes and carry out the trust responsibilites. The mission of the BIA as presented on it's web page is as follows:
        The Bureau of Indian Affairs' mission is to enhance the quality of life, to promote economic opportunity, and to carry out the responsibility to protect and improve the trust assets of American Indians, Indian tribes and Alaska Natives. We will accomplish this through the delivery of quality services, maintaining government-to-government relationships within the spirit of Indian self-determination.
        The BIA maintains a web page at  http://www.doi.gov/bia.  A brief history of the establishment of the BIA can be found at http://www.doi.gov/bia/shorthist.html. The basis for the government to government relationship between the United States and Tribal Nations is described on the BIA web site as follows.
        This mission of the Bureau of Indian Affairs is to act as the principle agent of the United States in carrying out the government-to-government relationship that exists between the United States and the federally-recognized American Indian tribes; and, to act as principle agent of the United States in carrying out the responsibilities the United States as a trustee for property it holds for federally-recognized tribes and individual American Indian.
        The twin cornerstones of the mission of the Bureau of Indian Affairs-the government-to-government relationship with American Indian tribe and Alaska Natives, and the responsibilities-are the results of more than two centuries of interaction between the United Sates and tribal groups. Virtually everything the Bureau does stems from these two concepts and both are inextricable bound to the past. A historical perspective, then, is necessary in understanding present-day Indian affairs and the role performed by the Bureau of Indian Affairs.
        The Spanish, French, Dutch, and British were the first Europeans to settle this continent, and they each brought with them their own ideas on how to deal with the inhabitants of the new lands. These early concepts eventually became the basis of the United States Indian policy:
  1. Tribes were to be thought of as separate sovereign nations to be dealt with on a government-to-government basis.
  2. As separate nations, the internal affairs of tribes were the responsibility of the tribal entity and were not to be tampered with.
  3. Relations with tribes were considered to be between two nations and were to be handled by the central government.
        Acceptance of these concepts was necessary before treaties could be made with Indian tribes. Treaties can only be made between sovereigns; they can only be made by the central government, and they affirm, rather than deny, mutual right of self-government.
        In 1778, the first treaty was signed between an Indian tribe, the Delaware, and the United States government. In signing this treaty, the United States was affirming the English and European tradition of dealing with tribes and political entities. Early U.S. policy was consistent with European practice of recognizing tribes as government with full internal sovereignty. By 1832, however, tribal sovereignty had been limited after the tribes had agreed to regard themselves as under the protection of the United States. Also, tribes consented to extinguish their external sovereignty and to recognize legislative powers of Congress over them through treaties. This agreement did not do away with tribal sovereignty altogether. A tribes' sovereign powers can only be removed by an act of Congress.
        The government-to-government aspect of federal-tribal relations has received some serious assaults through the years. Recently, however, tribes have adopted measures to strengthen their tribal governments and take control of their own affairs. The Bureau is supportive of the tribes in this endeavor. Also, capabilities of the bureau of Indian Affairs are being expanded to improve and strengthen the technical support provided the tribal governments and tribal court systems. Special initiatives are directed at formal training, specialized guidance, improvement of tribal governing document codes, and other regulations that enhance a tribes capacity to govern itself.

See, http://www.doi.gov/bureau-indian-affairs.html

        The Tribal Social Service Department of the BIA is responsible for Indian Child Welfare Act issues including notice to Tribes of ICWA child custody proceedings.