Indian Child Welfare Act (ICWA)

What happened

Congress passed the Indian Child Welfare Act (ICWA) in 1978 as Public Law 95-608. Its own findings give the reasons. They say "an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies," and that a high share of those children were placed in non-Indian foster and adoptive homes. They add that states "have often failed to recognize the essential tribal relations of Indian people." They also state there is "no resource that is more vital to the continued existence and integrity of Indian tribes than their children."

The Act then sets rules. Section 1911(a) gives a tribe jurisdiction "exclusive as to any State" over custody proceedings involving an Indian child who lives or is domiciled on the reservation. Section 1915 sets placement preferences. In an adoptive placement under state law, preference goes, absent good cause otherwise, to a member of the child's extended family, then other members of the child's tribe, then other Indian families.

In Haaland v. Brackeen (2023), the Supreme Court considered challenges from individual petitioners and the States of Texas, Indiana and Louisiana, though only Texas still challenged ICWA before the Court. It declined to disturb the Fifth Circuit's conclusion that ICWA is within Congress's Article I authority, and rejected the anticommandeering challenges to the provisions it addressed. The plaintiffs lacked standing on the equal protection claim, so that issue remained undecided.

Summarized with AI assistance from 4 sources and checked against their words; not yet reviewed by historians or by the nations. Report an error