The Indian Child Welfare Act


Congress passed the Indian Child Welfare Act (ICWA) in 1978 in what they say was a response to a high number of Indian children being removed from their homes by both public and private agencies. ICWA gives tribal governments a strong voice concerning child custody proceedings which involve Indian children, by allocating tribes exclusive jurisdiction over the case when the child resides on, or is domiciled on, the reservation, or when the child is a ward of the tribe; and concurrent, but presumptive, jurisdiction over non-reservation Native Americans’ foster care placement proceedings.

However, questions arise over the motivation of the act when, according to the 2000 census, approximately 75% of people claiming to have American Indian or Alaska Native ancestry live outside the reservation. Further, interracial marriages are a fact of life. It is must be recognized that most children of heritage live off the reservation and have extended family that are non-tribal. Thus, family members have been removing their children from the reservations at a much higher rate than social services had.

Though supporters of the Indian Child Welfare Act say it has safeguards to prevent misuse, numerous multi-racial children across the U.S have been hurt by it. Children who have never been near a reservation nor involved in tribal customs are affected. The Cherokee Nation alone is currently tied up in about 1,100 active Indian Child Welfare cases involving some 1,500 children.  How many of these children are in the care of social services, versus living in stable situations with non-tribal relatives and pre-adoptive homes?

Tragically, under the Indian Child Welfare Act:

1)  Some children have been removed from safe, loving homes and placed in danger

2)  Equal opportunities for adoption, safety and stability are not always available to children of all heritages

3)  The Constitutional right of parents to make life choices for their children, for children of Indian heritage to associate freely, and for children of Indian heritage to enjoy Equal Protection has in some cases been infringed upon.

We believe that adoptive parents need well-defined protections. These are the citizens among us that have been willing to set aside personal comforts and take in society’s neediest children. Adoptive parents take many risks in doing this, the least of which is finances. People build their lives around family. Adoptive parents risk not only their own hearts, but the hearts of any birth children they have as well as the hearts of their extended family. These parents have an investment in the families they are building and have a right to know that they can put their names on the adoption paper with confidence. If we, as a society, continue to abuse these parents, we will find fewer people willing to take the risk of adoption and more and more children will languish in foster homes.

We also believe that early childhood attachment is critical to the healthy development of any child. Attachment theory shows that children who are separated from parents in early infant years will go on to suffer a range of behavioral, emotional and mental health problems. These effects carry into adulthood, affecting interpersonal relationships, leading to serious emotional disturbance and even having the neurobiological effects of childhood neglect that can equal and even surpass the impact of abuse and trauma. This research clearly indicates that the best interest of Veronica would be to stay with Matt and Melanie who are the only parents she has ever known.

The Cherokee Nation has argued that Indian children don’t experience “attachment” like non-Indian children do because they are more likely to attach to the tribe rather than the primary caretakers. The problem with these studies is that they are based on a sample of children, in the 1970s, who were removed from their families (with whom they were bonded and attached) as children, not newborns. Most were put into foster homes or institutions before being adopted and placed in homes that had no interest in supporting their native heritage. Many of these children came from homes with problems of alcoholism and conflict and were often abused in their homes of origin as well as in their foster and adoptive homes. Rather than making a somewhat racist assumption that children of heritage are somehow inherently different than other children, aren’t these issues more likely to be the root of the problem? Yet, these factors are not given any weight by researchers as contributing to these outcomes.

More recently, some researchers are acknowledging that other factors may have contributed to these outcomes and that positive Native Transracial Adoptions are possible. This turning tide by researchers confirms “that the defining problem of Native Transracial Adoption has been misdiagnosed and the core problem is not identity or a lack of it, but racism, exacerbated by isolation and abuse in any form, which are more likely the sources of the problematic outcomes of Native Transracial Adoption.”

Even with significant relationship with Indian tribal culture, forced application of ICWA runs afoul of the Constitution in three ways:

  1. It impermissibly intrudes upon a power ordinarily reserved to the states.
  2. It improperly interferes with Indian children’s fundamental due process rights.
  3. On the sole basis of race, it deprives them of equal opportunities to be adopted that are available to non-Indian children.