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The Indian Child Welfare Act has gotten much press coverage lately as a high profile adoption case, Adoptive Couple v.

Baby Girl (the Baby Veronica case) made its way through the court system in South Carolina and ended up in the United States Supreme Court. In cases like this all parties involved, most especial-ly the child, have faced a great deal of pain and anguish, most of which could have been avoided had ICWA been followed from the beginning.

ICWA was passed in 1978 in response to the troubling practices of public and private child welfare and adoption agencies. In the 1950s-1970s child welfare agencies were removing American Indian/Alaska Native children from their homes at alarming rates. Evidence suggested that many of these remov-als were a product of cultural bias, specifically the belief that American Indian/Alaska Native children would fare better if placed in non-Native homes. Studies showed that many of these removals took place without following protocol or court processes, and that the rights of both children and families were repeatedly violated. During the same time period the Child Welfare League of America funded by a federal contract from the Bureau of Indian Affairs and the U.S. Children’s Bureau ran the “Indian Adoption Project” which aspired to “save” American Indian/Alaska Native children by systematically placing them in non-Native homes outside their communities.

Research conducted prior to the passage of ICWA revealed that 25-35 percent of all American Indian/Alaska Native children nationwide were forcibly removed from their homes and that 85 percent of these children were placed in non-Indian homes, including foster care proceedings, pre-adoptive place-ment proceedings, adoption proceedings, and termination of parental rights proceedings. In response to these findings, psychologists and other professionals testified before Congress that the effected American Indian/Alaska

Native children suffered from a variety of adjustment and emotional disorders based on their isolation from their extended family net-works of support and culture. This and other testimony resulted in the passage of ICWA.

ICWA contains two major components. First, it sets forth minimum standards that states must follow when working with American Indian/Alaska Native children and families in child wel-fare and adoption proceedings. Second, it recog-nized a tribe’s inherent right to take jurisdiction and provide services to their own children.

ICWA creates minimum federal standards that apply in all state court child custody pro-ceedings as defined by the Act (ICWA defines Indian Child as children who are members of a tribe or children eligible for membership whose parents are members) that involve “Indian” children as defined by the Act. The provisions of ICWA provide higher procedural and substantive protections for American Indian/Alaska Native children and families than those that govern child custody proceed-ings in most states. These standards created in 1978 reflect what child welfare experts have recently labeled “the gold star standard” for child welfare. In fact, if you follow the trend in child welfare policy from 1978 through pres-ent day you will see that other federal child welfare laws have taken steps toward ensuring ICWA-like provisions for all children.

The provisions of ICWA were created with significant input from tribal leaders and have been carefully written to correct for the dis-ruptive treatment of American Indian/Alaska Native children and families in the child wel-fare and adoption systems. Some of the more important provisions include: • Notice to the tribe of pending involuntary

proceedings. A tribe is to be notified that their member child is involved in a child custody proceeding, and that they have the right to intervene as a party to the proceed-

ing. This gives the child one more advocate in the court room — one that will ensure that the child’s connections to his or her cul-ture and extended family are protected.

• Heightened foster care court procedure. When an involuntary placement of an Indian child is to occur the court must use a higher standard of proof, making the specific finding that continued custody by the parent is likely to result in serious emotional or physical dam-age to the child, and find that active efforts have been made to preserve the child’s family but that these efforts have been unsuccessful. These findings must be supported by the tes-timony of a qualified expert witness who has knowledge and experience with tribal child rearing practices. These provisions protect Indian children from bias in state systems and ensure that efforts to preserve the child’s fam-ily have been made before there is a decision to remove the child from his or her family.

• Foster care placement preferences. When an Indian child is placed in foster care, he or she must, absent good cause, be placed according to placement preferences, which prioritize extended family and tribal foster homes. These placement preferences respect traditional tribal support networks and ensure that a child is placed, whenever possible, in a home that keeps him or her connected to family and tribe. Under ICWA, tribes have the right to alter these placement preferences to better fit their culture and traditional child rearing practices.

• Heightened termination of parental rights pro-cedure. When an Indian child’s parents rights’ are to be involuntary terminated, the court must use a heightened standard of proof. The court must also specifically find that serious emotional or physical harm to the child will occur if the parental rights are not terminated; and that the active efforts to provide remedial and rehabilitative services which have been provided have been unsuccessful. These find-ings, must be supported by the testimony of an expert witness. In many tribal cultures termination of parental rights is unheard of

Understanding ICWA and its Importance

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Hbecause even parents who may not be able to be primary caregivers always have a place in the child’s life and the child’s family. These provisions, therefore, seek to protect family integrity whenever possible, and counter balance systemic bias by only allowing state courts to terminate a parent’s rights when absolutely necessary for the protection of the Indian child. The Supreme Court recently determined that these provisions do not apply to the parent of an Indian child who has never had legal or physical custody of their child.

• Heightened standards of voluntary termi-nation of parental rights for adoptions. Voluntary placements require the consent of the parent in writing before a judge, and the judge must explain the consequences of a voluntary termination of parental rights in a language the parent understands. Consent cannot be executed until the Indian child is 10 days old. This provision protects parents and Indian children from coercive adoption practices and guarantees that parents are fully aware of their rights.

• Adoption placement preferences. When an Indian child is placed for adoption, place-ment is prioritized, absent good cause, in this order: with a member of the child’s extended family, with a family in the tribe, or with another Indian family. Tribes have the right to alter these placement preferenc-es to better fit their culture and traditional child rearing practices. Similar to the foster care placement preferences, these preferenc-es protect a child’s right to be raised in con-nection with his or her family and culture. It is this provision that the Supreme Court recently determined applies only when there are competing adoptive families.

Aside from creating minimum federal standards that states must follow in their court proceed-ings and child welfare and adoption practices, ICWA also recognizes that the best interest of Indian children are protected when tribes have the responsibility for custody decisions. ICWA, therefore, recognizes tribe’s presumptive juris-diction over ICWA cases as well as their right to intervene in state proceedings and provide ser-

vices to their member children and families.

Tribes know the unique and special needs of their children and families better than anyone else. Tribes know the culture and traditions nec-essary to foster strong self-esteem and healthy identities in American Indian/Alaska Native children. Further, tribes are invested in this work, they recognize that the well-being of their children is essential to the survival of American Indian/Alaska Native people — without their children there is no future. Soon after the pas-sage of ICWA, tribes began intervening in state custody proceedings as well as developing their own child welfare programs. Today, almost every tribe in the nation provides some form of social services. Tribal capacity to provide servic-es has expanded steadily since ICWA’s passage.

ICWA has done much to correct the problem of unlawful removal of American Indian/Alaska Native children from their homes and cultures. However because ICWA has not been uniformly complied with, American Indian/Alaska Native children are still over represented in foster care, and more frequently adopted out to non-Native homes. For example, although American Indian/Alaska Native children face maltreat-ment at rates similar to the general population, they are just less than 1 percent of all children in the United States but 2 percent of all children who are in foster care. The numbers are even more staggering when you assess specific states. For example, in Minnesota although American Indian/Alaska Native children make up only 1.4 percent of the total population, they are more than 16 percent of children in foster care. In South Dakota American Indian/Alaska Native children are 13 percent of the population but 52 percent of the children in foster care. Finally, in Alaska American Indian/Alaska Native children are 17 percent of the children but more than 51 percent of the children in foster care.

Similarly, adoption data illustrates that the adoption of American Indian/Alaska Native youth into non-Native homes remains common practice. In 2008 more American Indian/Alaska Native children in adoptive placements lived

in non-Native adoptive homes than American Indian/Alaska Native adoptive homes.

These child welfare and adoption facts are troubling because they are indicative of con-tinued cultural bias in state child welfare and adoption systems and ICWA non-compliance. In fact, one study has found that, due in large part to systematic bias, where abuse has been reported American Indian/Alaska Native chil-dren are two times more likely to be investigat-ed, two times more likely to have allegations of abuse substantiated, and four times more likely to be placed in foster care than their white counterparts. These practices result in the dis-proportionate numbers describe above.

To address the practices that result in these dis-proportionate placements, and to avoid cases like Adoptive Couple v. Baby Girl (The Baby Veronica case), practitioners must have a better understanding of ICWA, and must apply it con-sistently every time a foster care or adoption case involving an Indian child is in their case load or courtroom. ❁

ABOUT THE AUTHOR: Adrian Smith is a gov-ernment affairs associate at the National Indian Child Welfare Association. As both a lawyer and a social worker Smith works with tribes and tribal policymaking organizations, as well as state and federal governments on policy development, federal funding issues, and ICWA litigation to support tribal sovereignty and pro-mote the well-being of American Indian and Alaska Native children and families.

• The House Repot, H.R. Rep. No. 1386, 95th Cong., 2nd Sess. at 9 (1978).• Senate Hearings, Hearing before the U.S. Senate Select Committee on Indian Affairs, 95th Cong. 1st Sess. on S.1214. To Establish Standards for the Place-ment of Indian Children in Foster or Adoptive homes, to Prevent the Breakup of Indian families, and for other Purposes at 46 (Aug. 4, 1974). • Summers, A., Woods, S., & Donovan, J. (2013). Technical assistance bulletin: Disproportionality rates for children of color in foster care. National Council of Juvenile and Family Court Judges: Reno, NV.• Summers, A., Woods, S., & Donovan, J. (2013). Technical assistance bulletin: Disproportionality rates for children of color in foster care. National Council of Juvenile and Family Court Judges: Reno, NV.• Kreider, R.M. (2011) Interracial Adoptive Families and Their Children: 2008 in Adoption Factbook V Alexandria, VA: National Council for Adop-tion, 109 Retrieved from: https://www.adoptioncouncil.org/publications/adoption-factbook.html • Hill, R. B. Casey-CSSP Alliance for Racial Equity in Child Welfare, Race Matters Consortium Westat. (2007). An analysis of racial/ethnic dispropor-tionality and disparity at the national, state, and county levels. Seattle, WA: Casey Family Programs.