An Overview of the Indian Child Welfare Act

January 2013

The Indian Child Welfare Act (ICWA) was designed to prevent the breakdown of Native American families, preserve tribal culture, and ensure tribal jurisdiction in order to respect and strengthen tribal sovereignty. ICWA applies to Indian children who are the subject of a child welfare proceeding such as foster care, adoption placements or termination of parental rights. The children must be members of a federally-recognized Indian tribe or eligible for membership in  such a tribe. ICWA grants tribes jurisdiction over these cases, sets  minimum federal standards for the removal of Indian children from their homes and establishes a preference system when out-of-home placements are  necessary. In cases in which the state assumes jurisdiction, it is necessary for state child welfare caseworkers and court officials to abide by ICWA requirements.

ICWA is federal law and states are required to apply it. Since implementation, its effectiveness and state compliance with its requirements has been inconsistent. Recent research has uncovered problems related to the states' success in applying ICWA, but no nationwide data is yet available to determine the extent and nature of the problems. Barriers to full implementation include difficulty in determining a child's Indian heritage and tribal eligibility, lack of appropriate foster and adoptive homes, tribal access to federal child welfare funding sources, lack of tribal institutional capacity, incompatible state laws and undeveloped or poor state-tribal relationships.

Iimplementation of ICWA is one way to see that the needs of Native American children are met. There are a number of options available to state legislators to increase state compliance with the federal act and to improve outcomes for Native children involved in child welfare proceedings. Several states including California, Iowa, Maine, Montana and Washington have implemented ICWA-related legislation or a similar individual state measure.

To successfully implement ICWA, states may want to consider the following policy options:

• Adopting legislation clarifying the requirements of the federal Indian Child Welfare Act and encouraging state-tribal cooperation.
• Supporting tribes seeking direct access to Title IV-E funds.
• Supporting state-tribal Title IV-E agreements to ensure that tribes have access to federal child welfare funds. These agreements should consider the need to develop tribal institutional capacity.
• Mandating education for child welfare case workers and judges about the Indian Child Welfare Act and providing funding for on-going training.
• Encouraging the state to provide culturally-competent child welfare services.
• Creating and supporting state-tribal liaison positions to help child welfare workers and court officials communicate and collaborate more effectively.
• Supporting tribal Court Appointed Special Advocates (CASA) programs to train volunteers to navigate the state and tribal court systems while representing children involved in a child welfare proceeding.