Indian Child Welfare Act (1978)

The Act's Passage and Provisions

American Indian activists began to rally Congress to pass the ICWA to end forced removals and to protect the rights of tribes and children. They demanded the repeal of state laws that made it illegal to place foster children with other Indian families. ICWA supporters also argued that child welfare officials had used ethnocentric reasoning to justify the removal of Indian children. For example, many children were removed from their homes because social workers deemed parents neglectful when they left children with extended family for long periods of time, a valued kin-care practice in many tribes. Similarly, case workers and state officials removed children not for abuse but because many Indians lived in homes that lacked physical comforts. ICWA activists argued that child welfare legislation must prioritize the emotional, not material, fitness of a home, and the rights of the tribe to raise its children. Supporters asserted that these removal practices amounted to genocide. Not only did families and tribes suffer emotionally from the removal of their children, but they also could no longer pass their cultures down to their displaced children.

ICWA passed with almost unanimous support. It had three main provisions. First, before parental rights are terminated in child welfare cases involving American Indians, states must make “active efforts” to provide rehabilitative services for the child's family. If removal is still necessary after these efforts, ICWA specifies an order of preference for child placement. For adoptions and foster care placements, Indian children should first be placed with a member of their extended family. If this is not possible, children should be placed with other members of the tribe, and then with families from other tribes. Foster care and preadoptive children may also be placed in a foster home that is licensed, approved, or specified by the tribe.

The second set of provisions regards jurisdiction over child welfare cases. The ICWA requires that the tribe be notified when an Indian child is placed in foster care or put up for adoption. The act also allows tribes to assume jurisdiction at any point leading up to legal proceedings. If the state cannot determine a child's parents, the secretary of the Interior must be notified and must make efforts to identify and notify the child's tribe.

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