The Indian Child Welfare Act (ICWA) is a federal law that seeks to keep Indian children with Indian families. It was passed in 1978 in response to compelling evidence of the high number of Indian children that were being removed from their families by public and private agencies and placed in non-Indian families. Prior to the passage of ICWA, approximately 75-80 % of Indian families living on reservations lost at least one child to the foster care system. Child Welfare agencies were often ignorant, indifferent of or insensitive to cultural differences in child rearing and parenting practices and, as a result, many unnecessary, and unwarranted, foster and adoptive placements were made. As stated by Choctaw tribal chief, Calvin Isaac, during US Senate testimony prior to the passage of ICWA, “One of the most serious failings of the present system is that Indian children are removed from the custody of their natural parents by non-tribal governmental authorities who have no basis for intelligently evaluating the cultural and social premises underlying Indian home life and child rearing. Many of the individuals who decide the fate of our children are, at best, ignorant of our cultural values and, at worst, have contempt for the Indian way and convinced that removal, usually to a non-Indian household or institution can only benefit an Indian child.” In response to this testimony and other overwhelming evidence from Indian communities that the loss of their children meant the eventual destruction of Indian culture Congress passed the Indian Child Welfare Act in 1978.
ICWA was enacted to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families. It established minimum Federal standards for the removal of Indian children and provides guidelines for the placement of Indian children in foster or adoptive homes which reflect the unique values of Indian culture. ICWA protects the interests of both Indian children and tribes. In the context of child welfare law, protecting the interests of a tribe in its children is unique. An underlying premise of ICWA is that Indian tribes have sovereign rights and legal powers with respect to Indian children and have a vital legal role to play in determining whether Indian children should be separated from their families and culture. The Act recognizes the authority of both tribal and state courts to make decisions regarding the welfare, care, custody and control of Indian children. The Act also provides assistance to Indian tribes in the operation of tribal child and family service programs.