Answers to commonly asked questions about:
The Indian Child Welfare Act (I.C.W.A.):
Written by: Lori L. Arellano, May 29th, 2012
Q.: Why did the United States Federal Government enact the Indian Child Welfare Act in 1978?
Answer: After performing a statistical study of the patterns of removal of Native American children from their biological families in the United States, the U.S. Congress deemed it necessary to enact federal law, namely the Indian Child Welfare Act (ICWA), to mitigate the disproportionately high numbers of Native American children put up for adoption. Historically non- natives, including state court systems, Child Protective Service Agencies and county officials “…often did not understand, ignored, or rejected the cultural or social customs of the child’s tribal community…” and therefore sought to assimilate Native Children by placing them in non-native adoption homes or by placing them in institutions. I.C.W.A. was federally enacted as a measure to set forth standards and regulations that must be adhered to in the State Courts and by the Child Protective Service (CPS) in custody matters involving Native American Children.
Consider the following statistics that precipitated the enactment of I.C.W.A.:
· The Native American children that became identified as a CPS case were eight (8) times more likely to be put up for adoption.
· 90% of the Native American children that faced adoption were placed in non-Native American households or were placed in institutions.
· The culture shock that these Native American children endured later resulted in these children developing behavioral and emotional problems.
Q.: What is the Constitutionality of I.C.W.A.?
Answer: In Morton v. Mancari (417 U.S. 535, 1974) it was established that Native Americans have a unique political relationship with the United States as a Sovereign Tribal Nation and not as a specific racial group.
Further, The United States Congress has determined that this country, The United States of America, has a responsibility to protect Indian children who are members of or who are eligible for membership in an Indian Tribe.
Q.: Who is eligible for Protection under I.C.W.A.?:
Answer: The Indian Child Welfare Act was designed to add additional legal custody protections to and for Native American Children affected within and by the State Courts and the Child Protective Services Agencies. An “Indian child” as defined by ICWA is an unmarried person under the age of 18 who is: 1) a member of a federally-recognized Indian tribe; or 2) who is eligible for membership in a federally-recognized Indian tribe because they are the biological child of a member of a federally-recognized Indian tribe.
Q.: What are some of the benefits of I.C.W.A.?
§ Tribal influence on the execution of an adoptive placement agreement.
§ The child has a better chance of remaining connected to the culture and family relationships of his/her tribe.
§ The child’s identity remains intact, through cultural awareness and participation in cultural events, which in turn promotes the overall stability and security of Indian Tribes and families.
§ The extraordinarily high numbers of Native American Adoptions to non-tribal entities is reduced.
§ The result of the implementation of the federal I.C.W.A. law has been the establishment of ICWA specific child custody proceeding rules that the state courts are mandated to follow in cases involving Indian Children.
To conclude, even with the assistance of the enactment of the I.C.W.A. law, to a varying degree depending upon the county involved in the I.C.W.A. matter, there continues to be a struggle and a burden for Tribal Affiliates and Representatives to achieve an understanding of Tribal ways and customs to an oftentimes disinterested state and/or county official. The ICWA law endeavors to decrease the number of Native American children removed from the Native American Community; however Native Children continue to be lost by the State Court System into the Child Protective Services (CPS) system.
Please note that: I.C.W.A does not apply in custody disputes between the biological mother and biological father; unless the termination of the Native American parent is at issue (stake).
California Indian Legal Services. (2008) . The Indian Child Welfare Act (Training booklet). Escondido, CA: Attorney Michele Fahley.
Pit River Tribe ICWA Contact Information:
Susan M. Alvarez
36970 Park Avenue
Burney, CA 96013
530-335-5530 ICWA Office