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The Indian Child Welfare Act: What Is It?

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The Indian Child Welfare Act: What Is It?

Indian child in traditional dress, 1937. Photo courtesy Wikimedia Commons.

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The 1970's was a time that saw great reform in federal Indian policy, initiated by the Nixon administration's commitment to affirm tribal self-determination. After the passage of the Indian Self-Determination and Education Assistance Act of 1975, Congress passed numerous laws designed to counteract decades and centuries of policies that had devastating effects on Native American communities. Among them was the establishment of the American Indian Policy Review Commission in 1975, the American Indian Religious Freedom Act of 1978, and the Indian Child Welfare Act (ICWA) of 1978.

Background

Federal Indian policy has deep roots in ideology which painted American Indians as "savage heathens" that needed to be civilized (based on legal principles such as the doctrine of discovery) for the ultimate goal of assimilation into American society. Assimilation meant the political erasure of the existence of Native Americans and was seen as the answer to America's "Indian problem." Embodied in the concept "kill the Indian and save the man" espoused by Col. Richard Pratt, founder of the Carlisle Indian Industrial School, was articulated what many felt was a compassionate approach toward Indian policy: separating the Indian from his culture. This took many forms, but most egregious among them was the forced removal of children from their families, beginning officially with the Indian boarding school mandate of the Dawes Act.

Even long after the repeal of the Dawes Act in 1934, Indian children were kidnapped from their families fueled by the same motivation to "save" Indians from themselves. Social narratives focused on Indians as unfit for parenthood resulted in policies of forced sterilization of Native American women and placement of children for adoption in white families well into the 20th century. This is exemplified by the Indian Adoption Project which was funded by the Bureau of Indian Affairs and lasted from 1958 to 1967. As late as 1971 17 percent of Indian children were removed from their families and sent to BIA boarding schools. In its investigation of Indian child removal, Congress found that "State governmental actors following this pattern and practice removed between 25 and 35 percent of all Indian children nationwide from their families, placing about 90 percent of those removed children in non-Indian homes" ("The Origins of the Indian Child Welfare Act: A Survey of the Legislative History," Michigan State University College of Law, 2009).

What the Act Does

ICWA acknowledges the history of forced removal of Indian children from their families as one aspect of genocide. It recognizes not only the sovereignty of tribal nations based on federal Indian law, but sees children as resources necessary for the perpetuation of tribal culture and community. Tribal nations are one of three sovereigns in the United States, existing alongside state and federal sovereignty, and the law forces states to acknowledge the superiority of federal law in the case of Indian adoption (adoption laws are regulated by states). Federal Indian law, while many times in history has proven to be a detrimental force to Native Americans, has also evolved the principle of the trust relationship between the federal government and tribes, and ICWA is an enactment of that relationship.

According to the Indian Child Welfare Act Law Center, the law addresses the crisis in Indian adoption placement in two ways:

"First, it provides that no Indian child may be removed from the home unless qualified Indian expert testimony indicates that the child is in danger of experiencing physical or emotional harm. This requirement, if followed, will ensure that removal of an Indian child from the home is based upon objective indicia of harm to the child, rather than subjectively applied cultural or social standards.

"Secondly, where Indian expert testimony does indicate ]the] likelihood that continued custody in the home will result in harm to the child, the ICWA generally requires that the child be removed from the home, but placed, in order of preference, within the Indian extended family, within the family of the child's tribal affiliation, or within another Indian family. Placement of Indian children in Indian homes was Congress' way of ensuring that when state court and child-protection agencies place Indian children outside of the home, they do not sever the children from their only means of receiving their cultural heritage - the Indian family."

Affects of the Law

Throughout the years disputes have arisen in the ways that the law is implemented; for example, what defines a child as Indian, and court challenges to identity based on cultural connectedness. However, according to the American Indian Law Alliance, research indicates an overall benefit to Native communities as a result of the ICWA's passage. Acknowledging that while the law is not perfect, other indigenous communities internationally can benefit from its model as it fits within the purview of the United Nations Declaration of the Rights of Indigenous Peoples mandate of free, prior and informed consent.

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