The Indian Child Welfare Act ("ICWA")

Lindsey Lamey Feb. 9, 2024

In 1978 Congress passed the Indian Child Welfare Act (“ICWA”) in response to the issues faced by Native American children, families, and Tribes regarding state child custody cases. The purpose of ICWA was to prevent the separation of Native American children from their parents, extended families, and communities, which was a common occurrence due to the actions of state child welfare and private adoption agencies. Before the implementation of ICWA, research suggests a large percentage of Native American families living on reservations experienced the loss of at least one child to a state child welfare agency. 

The intent behind the enactment of ICWA is to “protect the best interests of Indian children and to promote the stability and security of Indian tribes and families” 25 U.S.C. § 1902. ICWA introduced federal regulations in all state child custody cases involving a Native American child who is either an enrolled tribal member or eligible for tribal enrollment. 

State child welfare agencies must consider various factors when handling an ICWA case, these factors include: 

1. Making active efforts with the child’s family;

2. Identifying a suitable out-of-home placement for the child while adhering to the preferred placement provisions listed within ICWA; and

3. Notifying and engaging with the child's parents and the child’s Tribe throughout the court proceedings.

The extra protections provided by ICWA consider the unique political and cultural circumstances of the child and their tribes, in addition to targeting specific abuse of Native American children and their families by state child welfare agencies before ICWA's enactment. Experts and prominent child advocacy organizations have recognized ICWA as the benchmark of the United States child welfare policy.

In addition to combating targeted mistreatment towards Native American children and their families, ICWA ensures the preservation of their cultural roots, community ties, and familial bonds. ICWA establishes regulations concerning the placement of Native American children. ICWA prioritizes keeping Native American children with kinship placement, fellow tribal members, extended relatives, Native American families belonging to the same Tribe, and Native American families belonging to a different Tribe. The intention behind this placement prioritization is to uphold familial and cultural bonds within Native American communities, to ensure stability, and provide assistance to children who have possibly undergone traumatic experiences due to the separation from their families.

Another notable protection under ICWA is that it protects Native American parents. These protections include extensive resources and services designed to prevent the breakup of their family. State services offered to the families include transportation, parenting classes, behavioral health assessments and/or treatment, substance abuse assessments and/or treatment, childcare, and many more.

ICWA also includes a very important provision for the Native American child’s tribe. ICWA grants the Tribe the authority to intervene in the state’s child custody case. In Arizona, this means that the Tribe has a right to intervene in juvenile dependency cases where a Native American child’s placement is involved. This allows the Tribe to play a key role in determining what is in the best interest of the child while ensuring the protection of the child’s culture and heritage. The Tribe also has the authority to transfer the case to its own Tribal Court, therefore moving the case from state court to its own.

ICWA plays a vital role in protecting the rights and preserving the cultural and family connections of Native American children. The history of ICWA, the important provisions in the law, and how it has impacted Native American communities demonstrate its significance. While there are differences of opinion, ongoing improvements and collaborative efforts are necessary to ensure that ICWA will continue to make a positive difference in the lives of children, families, and Tribes for generations to come.

If you or a loved one have a legal matter that involves ICWA, contact our office today to consult with us on your juvenile dependency matter.