Indigenous Child Welfare Practices and ICWA Law

Guardians of Kin: The Enduring Fight for Indigenous Children and the ICWA Legacy

The fabric of Indigenous communities across the United States is woven with the profound reverence for children. They are not merely individuals but carriers of ancestral knowledge, future leaders, and the living embodiment of a nation’s continuity. Yet, for centuries, this sacred bond has been systematically targeted, leading to a profound crisis in child welfare that continues to reverberate through generations. At the heart of the ongoing fight to protect these bonds lies the Indian Child Welfare Act (ICWA) of 1978, a landmark piece of legislation that, while crucial, represents just one facet of the broader, evolving landscape of Indigenous-led child welfare practices.

A History of Erasure: The Genesis of ICWA

To understand ICWA’s significance, one must confront the brutal history that necessitated its creation. For over a century, U.S. federal and state policies actively sought to dismantle Indigenous families and cultures. The infamous Indian boarding school era, spanning from the late 19th to the mid-20th century, forcibly removed hundreds of thousands of Indigenous children from their homes, suppressing their languages, spiritual practices, and identities. Children were often subjected to severe abuse, neglect, and cultural indoctrination, leaving a legacy of intergenerational trauma that persists today.

Even after the boarding schools began to close, the assault on Indigenous families continued through state child welfare systems. During the 1950s, 60s, and 70s – a period often referred to as the "Sixties Scoop" – an alarming number of Indigenous children were removed from their homes by state social workers and placed into non-Indigenous foster or adoptive families. Studies from the era revealed that an estimated 25-35% of all Indigenous children were separated from their families, with 90% of those placements being in non-Indigenous homes, often without any evidence of abuse or neglect. Instead, poverty, cultural differences mistaken for neglect, and a paternalistic belief that non-Indigenous homes offered a "better" environment fueled these removals. The result was a catastrophic loss of culture, language, and identity for thousands of children, severing their ties to their tribal nations and heritage.

Facing the imminent destruction of their future generations, tribal leaders and advocates relentlessly pushed for federal intervention. Their efforts culminated in the passage of the Indian Child Welfare Act (ICWA) in 1978. Rooted in the principles of tribal sovereignty and self-determination, ICWA was enacted "to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families." It recognized that tribal nations, not just individual families, were harmed by these removals and asserted the inherent right of tribes to govern their own citizens and protect their cultural continuity.

ICWA’s Core Tenets: A Shield for Indigenous Families

ICWA fundamentally alters the landscape of child welfare cases involving "Indian children" (defined as any unmarried person under 18 who is either a member of an Indian tribe or is eligible for membership and is the biological child of a tribal member). Its key provisions are designed to keep Indigenous families together and, failing that, to place children within their extended family or tribal community.

1. Tribal Jurisdiction: ICWA grants tribal courts exclusive jurisdiction over child custody proceedings involving Indian children residing or domiciled on a reservation. For children not residing on a reservation, state courts must transfer jurisdiction to the tribal court unless there is good cause not to, or the tribe declines jurisdiction. This acknowledges the tribe’s inherent authority over its members.

2. Notice and Intervention: Tribes must be notified in any state court child custody proceeding involving an Indian child. They have the right to intervene at any point, providing legal and cultural expertise. This ensures the tribe, as a sovereign nation, can advocate for its children.



3. Active Efforts: ICWA mandates a higher standard of "active efforts" to prevent the breakup of the Indian family, rather than the "reasonable efforts" typically required in state child welfare cases. Active efforts require proactive engagement, culturally appropriate services, and direct assistance to families, often involving tribal resources and traditions, to help parents overcome challenges and safely reunify with their children.

4. Qualified Expert Witness (QEW): Before an Indian child can be removed from their home or parental rights terminated, a "qualified expert witness" must testify that continued custody by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child. This QEW must have specific knowledge of tribal culture and child-rearing practices, preventing misinterpretations of cultural norms as neglect.

5. Placement Preferences: If an Indian child must be removed, ICWA establishes a strict hierarchy of placement preferences: first, with a member of the child’s extended family; second, with other members of the child’s tribe; and third, with other Indian families. Only if these options are unavailable can a child be placed in a non-Indian home, and even then, efforts must be made to maintain cultural connections.

The Impact and Ongoing Challenges: The Brackeen Case

For over four decades, ICWA has served as a critical safeguard, dramatically reducing the disproportionate removal of Indigenous children and fostering reunification and culturally appropriate placements. It has been hailed as the "gold standard" of child welfare legislation, recognized for its commitment to family preservation and cultural identity. However, ICWA has faced persistent legal and political challenges, culminating in the landmark Supreme Court case, Haaland v. Brackeen.

The Brackeen case, initiated by a non-Native couple seeking to adopt an Indian child and the state of Texas, challenged ICWA on several grounds, including claims that it constituted racial discrimination, violated states’ rights under the Tenth Amendment, and unconstitutionally commandeered state agencies. This case ignited widespread concern across Indian Country, as a ruling against ICWA would have undermined tribal sovereignty and reopened the door to the devastating practices of the past.

In June 2023, the Supreme Court delivered a decisive 7-2 ruling upholding the constitutionality of ICWA. While not addressing every single legal argument, the Court largely affirmed ICWA’s foundation in the political classification of tribal citizens, not racial discrimination, and upheld Congress’s authority to legislate on Indian affairs. This victory was a monumental relief for tribal nations, but the fight is far from over. Challenges continue at state levels, and underfunding for ICWA compliance remains a significant barrier for many state agencies and tribes.

Beyond ICWA: Indigenous-Led Innovations in Child Welfare

While ICWA provides a vital legal framework, many Indigenous nations are moving beyond mere compliance, actively developing and implementing their own culturally grounded child welfare practices that reflect their unique values, traditions, and self-determination. These innovative approaches are strengths-based, preventative, and holistic, aiming to heal historical trauma and foster resilience.

1. Family Group Conferencing (FGC) & Peacemaking Circles: Many tribes are utilizing traditional dispute resolution methods like FGC and Peacemaking Circles. These processes bring together the extended family, tribal leaders, and community members to collaboratively develop solutions for child safety and family well-being. They emphasize collective responsibility, restoring relationships, and addressing underlying issues within a culturally respectful context.

2. Culturally Specific Prevention Programs: Tribes are investing in programs that focus on early intervention and prevention, such as parenting classes rooted in traditional teachings, culturally relevant mental health services, substance abuse treatment, and domestic violence support programs. These initiatives often incorporate traditional ceremonies, storytelling, and elders’ guidance to strengthen families and community bonds.

3. Tribal Courts and Customary Law: A growing number of tribal nations are exercising their inherent sovereignty by establishing or strengthening their own tribal courts and applying customary law in child welfare cases. These courts often prioritize restorative justice, healing, and family preservation over punitive measures, reflecting a deep understanding of their communities’ unique needs and cultural values.

4. Tribal Foster Care and Adoption Agencies: To ensure Indigenous children are placed in homes that understand and support their cultural identity, tribes are developing their own licensed foster care and adoption agencies. These agencies recruit and train foster parents who are either tribal members or culturally competent, providing a safe and nurturing environment that reinforces the child’s connection to their heritage.

5. Healing-Informed and Trauma-Responsive Care: Recognizing the pervasive impact of intergenerational trauma stemming from historical injustices, Indigenous child welfare practices are increasingly incorporating healing-informed and trauma-responsive approaches. These services acknowledge the historical context of trauma, prioritize safety and trustworthiness, and empower individuals and families in their healing journeys.

The Path Forward: Reclaiming Sovereignty and Nurturing Futures

The journey towards equitable and culturally appropriate child welfare for Indigenous children is ongoing. ICWA remains an indispensable legal tool, a testament to the decades of advocacy by tribal nations to protect their most vulnerable. However, true sovereignty in child welfare lies in the ability of Indigenous nations to define, develop, and implement their own systems, free from external interference.

As Indigenous communities continue to reclaim their inherent authority and wisdom, their child welfare practices offer a powerful model for all systems. By prioritizing family, community, culture, and healing, these approaches not only safeguard individual children but also ensure the continuity, resilience, and thriving future of entire nations. The fight for Indigenous children is a fight for justice, for identity, and for the fundamental right of every child to grow up connected to their heritage and surrounded by the love and support of their people. It is a testament to the enduring spirit of Indigenous self-determination, building a future where every child is a guardian of kin, and every kin is a guardian of the future.