Aug 18, 2015 - Indian Child Welfare Act: A Historical and Legal Context Part 2 by Brit Reed


On July 8, 2015, Indian Country Today Media Network reported that Phoenix, Arizona based based Goldwater Institute announced filing a lawsuit title A. D. v. Washburn that claims that the Indian Child Welfare Act (ICWA) of 1978 quote, “discriminates against native children.” This, sadly, is one of many lawsuits filed that are directly attacking ICWA.

This three part series aimed to create a greater understanding of ICWA for both natives and non-natives so that we might be better able to protect our children and strengthen the law were there is need for it to be strengthened. Part one of the series discussed how the U.S. government transitioned from a policy of taking our children and assimilating through boarding school to a policy of assimilating them through adoption. Part one also briefly discussed how ICWA came out of one of the fiercest and most successful battles by Native communities to protect Native American children from the predatory grasp of child welfare agencies. This second part will outline titles I, II, III, and IV of ICWA and discuss what it means. The third part of this series will discuss the state of ICWA since the passing of the Act in 1978.

In spite of the fact that ICWA has been in place for nearly 40 years, many child welfare agencies, courts, and the general public have little understanding of what the law means and how to utilize correctly and efficiently. Many misunderstandings, such as ICWA being a race-based law, prevail leading to court cases such as Adoptive Couple v. Baby Girl aka the Baby Veronica case and A.D. v. Washburn. It is for this reason that I part two of this series is focused solely on what is included in the language of ICWA, what rights tribal nations and eligible individuals have under ICWA.

Although ICWA contains four titles, Title I, “Child Custody Proceedings,” and Title II, “Indian Child and Family Programs,” contain what most scholars consider to be the bulk of the most important pieces of the Act (Johnson, 1981). However, Title III and Title IV of the ICWA concern specific key record-keeping requirements under the Act; and are considered the most important relevant aspects of the Act for native adoptees who have been adopted out to non-Native American families and wish to return to their birth families and tribal nations. ICWA sought to solve many of the issues that Native American communities had faced prior to the passage of the law.

In July of 1979, the Office of Human Development Services Administration for Native Americans under the Department of Health, Education and Welfare in Washington DC released a document titled Indian Child Welfare Act of 1978: Questions and Answers. This document’s aim was an attempt by the Federal government to make clear the intent of the ICWA and how it is to be utilized to those who would be encountering and enforcing the new Act. The answers from the document come straight out of the Indian Child Welfare Act (ICWA).

According to the Department of Health, Education and Welfare (1979), the Act specifies that it is only applicable to Native American children and their families who are members of federally recognized tribes or Alaskan villages. A Native American child is defined under ICWA as, “any unmarried person who is under age eighteen and is either (a) a member of [a Native American] tribe or (b) is eligible for membership in [a Native American] tribe.” The Act goes on to define what a Native American tribe is and what a Native American reservation is. ICWA also states that Native Americans from non-federally recognized tribes and Native American who live off reservation who have no federally recognized tribal affiliation are not covered under that act. This specification of who is and is not covered under ICWA underscores that this law is a citizenship based and not a race or ethnicity based law.

Under Title I, ICWA outlines under what circumstances a Native American child can be taken from their homes and how. It also states that tribal courts shall have jurisdiction over the proceedings of child custody and placement cases for all eligible children domiciled on the reservation; how transfer of jurisdiction could be made to states and visa versa.

Most commonly cited from ICWA under Title I is the order of preference in placing a Native American child in the case of foster care, preadoption, and adoption, whether voluntary or involuntary. In the case of adoption, the preference placement of a child goes as follows:  1) [with] A member of the child’s extended family; 2) [with] other members of the Native American child’s tribe; or 3) [with] other Native American families. If no one in those categories is willing or able to take the Native American child in question, then non-Native Americans can adopt the child. However, this placement preference must be followed first. In the same vein, no matter whether the case concerns a voluntary or involuntary placement, if a child is in foster care or preadoptive placement, the placement preference that follows applies:  1) [with] a member of the child’s extended family; 2) [with] a foster home licensed or specified by the child’s tribe; 3) [with] an Native American foster home licensed, or approved by an authorized non-Native American licensing authority; or 4) [with] an institution for children approved by a Native American tribe or operated by a Native American organization which has a suitable program. However, with both the adoption and foster care/preadoption placement preferences, the child’s tribe has the ability to change the order of preference by resolution. ICWA’s placement preference for Native American children being placed in foster care, preadoption care, and adoption sought to drastically reduce the supply of native American children being placed in non-Native American and non-culturally appropriate homes.

In order to stem the coercion of Native American mothers and families by IAP, CWLA, ARENA and other child welfare agencies, Title I section 103 of ICWA outlines the major requirements of state courts in voluntary child custody proceedings. Section 103 pronounces: (a) Any consent to foster care or adoption must be executed in writing before a judge; (b) A voluntary consent to foster care or adoption is not valid if it is given prior to ten days after the birth of a child; (c) The judge must certify “that the terms and consequences of the consent were fully explained to and understood by the parent or [Native American] custodian.” Where necessary, the court must certify that the explanation was translated into the native language of the [Native American] involved; (d) Consent to foster care placement may be withdrawn at any time; (e) Consent to termination of parental rights or adoption may be withdrawn for any reason before the final decree; (f) A parent may withdraw consent to adoption within two years after the final decree if such consent was obtained through fraud or duress .  In 2006 in her article A Family Lawyer’s Guide to the Indian Child Welfare Act Carol Tebben states, “In child placement cases it is sometimes claimed that notice had been given to the tribe about a tribal child in the sate welfare system because a discussion took place between state and tribal social workers. Such a discussion does not comport with ICWA mandates for official notice to the tribe, which must include notice by registered mail to the tribe and the child’s parents.”

Title I also strengthens tribal judicial jurisdiction concerning custody cases concerning tribal members or children who are eligible for tribal membership. Section 101(a) states, “[Tribal court have exclusive jurisdiction over child custody proceedings] whenever the proceedings involve [a Native American] child living or domiciled on the reservation, unless Federal law has vested jurisdiction in the State. The tribal court also retains jurisdiction when [a Native American] child is a ward of the tribal court, regardless of the child’s place of residence or domicile.”  Section 108 says, “However it should be noted that this Act allows tribal courts on reservations where a State is asserting jurisdiction under federal law (e.g. Public Law 83-280) to resume unquestioned and exclusive jurisdiction over child custody proceedings involving Indian children, by petitioning the Secretary of the Interior.” Section 101(b) hold, “In any involuntary State court proceeding regarding custody of an [Native American] child living off the reservation, the State court shall transfer jurisdiction to the tribal court, upon petition of the child’s parent, [Native American] custodian, or the [Native American] child’s tribe, in the absence of good cause to the contrary. Such a transfer will not take place if either parent objects or if the tribal court declines jurisdiction.” Continuously throughout Title I of ICWA, jurisdictional control and tribal influence over the outcome of custody and placement of eligible tribal members is asserted and reinforced.

Title II of ICWA directs the Secretary of the Interior to provide financial assistance to tribes to start and strengthen tribal child welfare codes and tribal service program such as licensing foster and adoptive homes; counseling and treatment of Native American families; homemaker service; home counseling; day care; after-school care; adoption subsidies; and legal assistance.   B.B. Johnson states in their 1981 article The Indian Child Welfare Act of 1978: Implications for Practice, “The intent is to support tribal services that would support Native American families and forestall the necessity for court action.”  Concerns expressed about Native American children being taken from families when the families voluntarily sought aid from state social services have the potential to be put to rest with Title II’s service provisions.

Regardless of Congress’s intentions, Title II of ICWA originally was unfunded by Congress; but by 1981 a subsequent congressional act authorized nine million dollars to fund it. Even among the 493 tribal nations the United States federally recognized at the time, the funding was grossly inadequate to carry out ICWA directives.  Despite that, the Department of Health, Education and Welfare stated, “The Act does affect State courts and State and local agencies proving services to [Native American] children and their families under titles IV-B and XX [of the Social Security Act] and with State funds. Therefore, those agencies and courts should become knowledgeable about the implications and impact of the Act” (emphases added).

Title III and IV of ICWA outline the major provisions in the act in regards to record keeping, record availability and confidentiality of records. The Department of Health, Education and Welfare quote ICWA in their Questions and Answers document when they state that, “State agencies involved in adoption or foster care proceedings should keep adequate records of their involvement in order to comply with the provisions related to record keeping, record accountability, and confidentiality.” In regards to this, sections 102(c), 105(e), 107, and 301(a) are of particular importance. Documentation of adoption and foster proceedings are not only important to the government, courts, and agencies to ensure compliance with ICWA, but it is vital to Native American adoptees who were adopted out and/or placed in foster care with non-Native Americans and are seeking to be reunited with their biological families and tribal nations. Section 107, which states, “State court records must be kept in order to allow any [Native American] who has reached age 18 and who was the subject of an adoptive placement, to find out his or her tribal affiliation and any other information that might be necessary to protect any rights flowing from that affiliation.” Section 301(a) also states, “State court records must be kept on all adoption proceedings in order to provide the Secretary of the Interior with a copy of the final decree plus information about tribal affiliation of the child and the names and addresses of the biological parents and adoptive parents, and the identity of any agency having information relating to the adoptive placement.” These two sections are utilized in particular by Native American adoptees.

It is important that not only child welfare agencies and courts understand ICWA, but for the general public know and understand this law as well. It is my hope that with more resources regarding ICWA available, that more native families and nations will be able to utilize it to protect their children; and that native adoptees will understand what has happened to them in a legal context. By understanding ICWA and analyzing how it has or has not helped to reduce the number of children being taken from our communities, since it’s passage in 1978, we can further work to find ways to strengthen it.

Brit Reed (Choctaw) is a native adoptee. She received her Bachelors of Art in 2014 through the Evergreen State College Reservation Based Community Determined program. She is currently a member of the 2014-2016 Master in Public Administration with a Concentration in Tribal Governance cohort at the Evergreen State College.

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