Jessica Rios

Associate Editor

Loyola University Chicago School of Law, JD 2026

 

The Indian Child Welfare Act of 1978 (ICWA) has been considered the “gold standard” of child welfare best practice from experts in the field. This is because it requires active efforts to keep children safe in their homes and connected to their families, communities, and culture. For the past 46 years, ICWA has stood as a powerful force in protecting Native American children and preserving Indigenous cultures. Considering that reunification is the most common goal for children in foster care, ICWA is an essential means of reaching this goal in a culturally responsible way for Native American children. Further protections at the state level as well as expanding ICWA are necessary to protect tribal sovereignty in the removal of their children.

What is ICWA?

ICWA is a federal law that governs the removal of and out-of-home placement of American Indian and Alaska Native children and youth. The policy behind the Act is “to protect the best interest of Indian Children and to promote the stability of Indian tribes and families” by establishing “minimum Federal standards for the removal of Indian children and placement of such children in homes which will reflect the unique values of Indian culture.” The Act gives tribal governments exclusive jurisdiction over children who reside on or are domiciled on a reservation and have a biological parent who is a tribal citizen.

ICWA created heightened procedural protections for Native children who face removal and provides preferences for foster or adoptive placement with extended family, members of the child’s tribe, or another tribe. Specifically, the Act recognizes the authority of both tribal and state courts to make decisions about welfare, care, custody and control of Indian children.

Compliance with ICWA applies to state and county child welfare agencies, attorneys, social workers, and the Bureau of Indian Affairs; however, courts are currently the main means of enforcement. This lack of oversight has led to difficulties in ensuring compliance and challenges to the Act threaten what existing protections are able to accomplish.

The significance of ICWA

Removal of Native children from their homes has a long gruesome history in the American legal system. During the late 19th and early 20th centuries, the federal government forcibly removed Indian children from their homes and tribes to attend boarding schools, a practice that often resulted in permanently severing the connection between Indian children, their families, and their tribes.

ICWA’s standards were “designed to halt the ‘wholesale removal’ of Native children from their homes and communities.” Prior to ICWA, nearly one third of Native American and Alaska Native children were removed from their homes by state welfare and private adoption agencies with 85 perfect of those children placed outside of family or tribal care with non-Native people.

Though the rate of removals of Indian children has decreased since ICWA was passed, data reveals that Indian children continue to be disproportionately represented in the child welfare system.

Recent constitutional challenges to ICWA

In a landmark decision on June 15, 2023, the Supreme Court affirmed the constitutionality of ICWA in Haaland v. Brackeen. In the 7-2 opinion, the Court rejected the petitioners’ anticommandeering challenges under the Tenth Amendment and found that the parties lacked standing to litigate their other challenges to ICWA’s placement preferences.

Tribal sovereignty and the welfare of Native children are at risk as the Minnesota Supreme Court decides a constitutional challenge to the Indian Child Welfare Act of 1978 (ICWA). The case concerns twin toddlers in foster care who were first placed with a non-Native couple before being reassigned to live with their mother’s cousin, a tribal member. As children who are eligible for tribal membership, the twins’ placement is in compliance with ICWA, which requires relatives or Native persons be prioritized as caregivers for foster children who are members of tribes or are eligible for tribal membership. Citing the 14th Amendment, the non-Native couple alleges that ICWA’s placement preference is discriminatory and thus violates equal protection rights.

These constitutional challenges exemplify the growing need to strengthen ICWA and state-specific iterations of the Act. The risk that each challenge poses to the futures and wellbeing of Native American children ultimately jeopardizes the right of Native tribes to exist by way of threatening tribal sovereignty. Protecting Native American rights, with regard to their families and general right to exist, should continue to be a priority in adoption and foster care proceedings.

The future of ICWA

ICWA is essential to protecting the interests of a tribe and its children as it preserves tribal sovereign rights and legal powers, thus securing tribes’ vital role in preventing the separation of Indian children from their families and culture. Recently, a bipartisan group of federal lawmakers announced the “Strengthening Tribal Families Act of 2024,” a proposed enhancement to ICWA. This Act would enhance states’ ability to conduct outreach to extended family and tribal communities. Expanding ICWA in this way would be a significant means of ensuring tribal sovereignty. Additionally, this legislation would provide opportunity for greater oversight of compliance via the Department of Health and Human Services, in accordance with the recommendation of this bipartisan group.

A successful challenge to ICWA would not only seriously threaten the welfare of Native children in foster care but also chip away at tribal sovereignty by diminishing tribes’ authority. Many states have adopted their own version of ICWA, and in light of recent challenges, further strengthening of these state regulations may prove especially necessary should ICWA fall. Ideally, a regulatory body would be created to oversee compliance with ICWA in addition to the Bureau of Indian Affairs. However, this legislative proposal to expand ICWA remains a crucial step in the right direction.