The Indian Child Welfare Act (ICWA) is a federal statute (25 U.S.C. §§1901-1963) passed in 1978, whose purpose is to:
protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture...
The law was passed, in part, in response to studies which showed that 25-35% of Indian children nationwide were being removed from their families and placed in adoptive families, foster care or institutions. Most often the placement in foster care or adoptive homes was with non-Indian families. The children themselves suffered from such removal, and their families and tribes sustained great loss as well. Senate hearings were conducted in the mid and late 1970's concerning this situation and in response to extensive lobbying by tribes and organizations working with them; the Indian Child Welfare Act was the ultimate result.
The Act functions by affirming existing authority in the Indian tribe to handle child protection cases and by setting out federal requirements that apply to all state court child custody proceedings involving Indian children. An Indian child is defined as any unmarried person under the age of 18 who is a member of an Indian tribe or is eligible for such membership and is the biological child of a tribal member. Indian tribe means any federally recognized tribe. ICWA dictates that tribal courts have exclusive jurisdiction for proceedings concerning an Indian child who “resides or is domiciled” within their reservation (unless that jurisdiction is vested in the state under existing federal law). The U.S. Supreme Court addressed the question of determining domicile in its 1989 case, Mississippi Choctaw Indian Band v. Holyfield, 490 U.S. 30 (1989). Cases involving Indian children not domiciled on the reservation shall still be transferred to tribal court upon the petition of either parent or the Indian custodian, unless there is objection from either parent, good cause to the contrary or a declination by the tribal court. Some states have adopted the so-called “existing Indian family” doctrine which limits the application of ICWA to only those cases where an Indian child lives on-reservation or is culturally or socially connected to the Indian community – thus is part of an “existing Indian family”. Decisions from tribal courts under ICWA are entitled to full faith and credit in other tribal, state and federal courts and in U.S. territories.
When cases involving Indian children (including adoptions, parental rights terminations and foster care placement) remain in state courts, the tribe and the child’s parents are entitled to receive written notice of the proceedings. The tribe may intervene in the case and advocate for the reunification of the child’s family or for other appropriate placement. In adoption cases, the state court is required by ICWA to give preference in placement to: 1. a member of the child’s extended family; 2. other members of the child’s tribe or 3. other Indian families. If the case is a foster care or preadoptive placement an order of preference is again mandated by ICWA, and the placement is required to be in the “least restrictive setting which most approximates a family and in which [the child’s] special needs, if any, may be met.” Other ICWA safeguards involve evidence standards and record-keeping and reporting.
Some states have passed their own Indian Child Welfare Acts, which may have more stringent requirements than the federal ICWA. ICWA does not apply in divorce actions between a child’s parents.