In 1978 Congress passed the Indian Child Welfare Act (ICWA) in recognition of, and in an attempt to fix rampant abuse within child protection measures applying to Native American children. ICWA is still in place today, and is an important issue to understand, especially for those living and adopting in areas where placements may involve members of Native American tribes.
According to the National Indian Child Welfare Association, Indian children have a unique political status as members of sovereign tribal governments. Congress, through the Constitution, statutes, treaties, and the general course of dealing with Indian tribes, is charged with the responsibility for the protection and preservation of Indian tribes and their resources, including Indian children.
Unfortunately, history has shown that Native American children are often pulled into foster care, not as a last resort, but first thing. Instead of allowing the tribes to take care of their own, social workers often remove children from reservations and Native American homes before exhausting all familial and tribal opportunities for placement. ICWA was created to put restrictions and guidelines in place that protect the child’s heritage as well as their best interests.
If you are currently interested in fostering or adopting a child with American or Alaskan Indian heritage, here are some important things you need to understand about the Indian Child Welfare Act and how it may relate to your adoption:
• In custodial situations, an American Indian child must be a member of a tribe in order to be in compliance with the law. If the child is a member, or their biological parents are members and the child is eligible, the tribe may speak and be involved in decisions regarding placement and custody, or may ask to have the child represented in tribal court, rather than in the US court.
• Before placing a child in a non-familial or non-tribal final home, states are required to make what are called “active efforts” to place the child in an ICWA-compliant situation. These efforts include mandatory attempts at parental and familial reunification before terminating rights permanently, and consultation with the tribe in a timely manner.
• A “qualified witness” (meaning a social worker or anthropologist with deep knowledge of the tribal social and situational practices) must testify at every ICWA trial before foster placement can occur.
• The preferred order of placement for a child who falls under the purview of ICWA is as follows
-Familial (Indian or non-Indian) placement
-A tribal-approved foster home
-An Indian-run foster home (may not necessarily be approved by the specific tribe)
-A facility (either tribal approved or Indian run) or institution that can meet the needs of the child
So what does all this mean to the hopeful foster or adoptive family? Basically, ICWA provides an extra layer of protection for eligible children removed from their first homes and will require patience and understanding for all parties involved. At the end of the day, we want foster kids to be able to return home to a safe, caring, familial environment and, if that isn’t possible, ICWA was designed to make sure that the American or Alaskan Indian child can remain connected to family and heritage.
Have you had experience with the Indian Child Welfare Act? Let us know your story in the comments below. For more information about ICWA, see www.nicwa.org.
