Report Native American Children and Child Welfare Laws

Overview 

In 2023, the U.S. Supreme Court upheld the Indian Child Welfare Act of 1978. The ICWA is a federal law that governs the removal and out-of-home placement of Native American children. The law established standards for the placement of Indian children in foster and adoptive homes and enabled tribes and families to be involved in child welfare cases. 

The ICWA was enacted in 1978 after the federal government recognized that Native children were being removed from their homes and communities at much higher rates than non-Native children. Today American Indian and Alaska Native children are still more likely than non-Native children to enter the child welfare system and to be removed from their homes.  

Understanding the historical and current experiences of Native children, as well as federal and state laws surrounding tribal sovereignty, can help state legislators promote the well-being of Native children in their state.

About the Indian Child Welfare Act

The ICWA is intended to protect the best interests of Indian children in the child welfare system, preserve tribal culture and guarantee tribal jurisdiction. The law establishes minimum standards for placing Indian children in kinship, foster and adoptive homes, as well as the removal of Indian children.

The Supreme Court upheld the ICWA in Haaland v. Brackeen, which consolidated three cases brought by Texas, Louisiana and Indiana. Non-native parents who wanted to adopt Native children also joined the case. Justice Amy Coney Barrett wrote the majority opinion, where she dismissed the challengers’ argument that the ICWA goes beyond Congress’ power to regulate commerce with Indian tribes. Challengers also argued that the ICWA violates the anti-commandeering doctrine under the Tenth Amendment, and the court also dismissed this argument as well. The court did not address arguments that ICWA placement preferences violate equal protection and nondelegation doctrine. Instead, the court ruled that the parties did not have standing to raise these challenges.    

Many child welfare practitioners consider the ICWA to be the gold standard of child welfare, claiming that its principles should be applied to the child welfare system generally. The ICWA emphasizes a child’s right to live within their community and a family’s right to participate in child welfare proceedings in a way that reflects their cultural and social standards. Under the ICWA, child welfare agencies must use “active efforts” to keep Native children safe with their families and connected to their communities. The ICWA’s active efforts standard is more rigorous than the reasonable efforts standard required by Title IV-E.

When children must be removed from their home, they are more likely to live in stable, permanent environments when they are placed with relatives or fictive kin. In addition, research suggests that children who are placed with kin are more likely to be employed or enrolled in school by age 21, and they are less likely to experience homelessness or incarceration.

Purpose and History of the ICWA

The law (25 U.S. C. 1902) states, “The Congress hereby declares that it is the policy of this nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs.”

Congress enacted the ICWA in response to frequent removals of Native children from their families, communities and tribes by child welfare and adoption agencies. Congressional hearings exposed egregious facts about Indian child welfare in the United States. Congress found that 25% to 35% of all Native children were removed from their homes. Congressional surveys from 16 states indicated that approximately 85% of children removed were placed outside of their communities—often to assimilate Native children into white American culture. As a result, thousands of Native children were raised in non-tribal homes, hindering their ability to participate in their community’s customs and practices. Congress found that removals diminished tribal sovereignty and prevented tribes from exercising appropriate authority over their citizens and their citizens’ children.

Congress also found that state actions contributed to high removal rates. The four leading causes of high removal rates among Native children were, “a lack of culturally competent state child welfare standards for assessing the fitness of Indian families; systematic due-process violations against both Indian children and their parents during child-custody procedures; economic incentives favoring removal of Indian children from their families and communities; and social conditions in Indian country.”

For more information about the provisions and implementation of the ICWA, consult Guidelines for Implementing the Indian Child Welfare Act by the Bureau of Indian Affairs.

Native American and Alaska Native Children in the Child Welfare System

The United States federal government recognizes 574 American Indian and Alaska Native tribes as domestic dependent nations, and these nations are located in at least 36 states. Tribal nations have the power to establish distinct governments; they enact laws, determine citizenship and manage activities on tribal lands. Many tribal nations operate their own child welfare and protective services systems and courts. The ICWA requires states to ensure that Native children’s cases are heard in the correct jurisdiction to preserve tribal sovereignty over their children. Tribes that are recognized by the federal government are eligible for funding and services from the Bureau of Indian Affairs, including Title IV-E funds for child welfare services and child maltreatment prevention.

Reports of child maltreatment among Native children are among the highest in the nation, and Native children are overrepresented in the child welfare system. American Indian and Alaska Native children enter the child welfare system at higher rates than non-Native children, according to data analyzed by Casey Family Programs. Fifteen out of 1,000 children who identify as American Indian or Native Alaskan alone are in foster care, compared to 5 out of 1,000 for other children, though these figures vary by state. Arizona and Oklahoma are among a handful of states with similar foster care rates for Native and non-Native children.

Understanding the Overrepresentation

Poverty, trauma and bias contribute to the overrepresentation of Native children in the child welfare system. Research shows that economic and material hardship contributes to child welfare system involvement. In addition, human rights and treaty violations against Native Americans, including the separation of families, contribute to intergenerational trauma within Native communities. The American Psychological Association reports that Native children experience higher rates of adverse childhood experiences due to generations of violence toward Native communities.

Reports of maltreatment among Native children are more likely to be investigated and thus substantiated, and Native children are more likely to be removed from their home compared to non-Native children, according to the National Indian Child Welfare Association.

In addition to experiences of maltreatment, Native children face myriad inequities due to historic genocide and inhumane policies toward tribes, as well as ongoing structural disadvantages. One in three Native children experience poverty, and rates are higher on some reservations. The majority of children live in communities with high rates of substance use disorder, suicide, domestic violence and homelessness, according to a report by the Office of Juvenile Justice and Delinquency Prevention.

Native American adolescents are more likely than their white peers to be exposed to violence, including sexual assault. Exposure to violence contributes to increased mental and physical health problems, academic difficulties and juvenile delinquency. Preventing and responding to child maltreatment often requires addressing the intersecting regions of a child’s life. For more information about preventing child maltreatment, refer to NCSL’s report, Policy Levers for Preventing Child Maltreatment.

Tribes and the Family First Prevention Services Act

Under the Family First Prevention Services Act of 2018, tribes can access Title IV-E funds via three pathways. They can apply for funding directly from the federal government, form tribal-state agreements or enter into a contract with a state. 

Tribes that apply for direct funding must submit a Title IV-E Prevention Plan and assume responsibility for the requirements under the Family First Prevention Services Act.  The Children’s Bureau has approved the Title IV-E prevention plans of at least three tribes, the Cherokee Nation, the Eastern Band of Cherokee Indians and the Salt River Pima Maricopa Indian Community. At least nine additional tribes have submitted plans but have not yet been approved.           

Tribal-state agreements vary by state and tribe. The Family First act allows tribes to enter into agreements with states. Under this arrangement, tribes can function as Title IV-E child placing agencies. They must operate under federal guidelines, but as Title IV-E agencies they can develop licensing standards that meet the needs of their community members. Children who are under the care of the tribe can be eligible for Title IV-E maintenance payments.

Similarly, tribes and states can enroll in contracts that help both parties execute the state or tribal prevention plan. In these situations, states may authorize tribes to license foster homes or conduct other necessary administrative actions.

Examples of State Legislation Related to Indian Child Welfare

Although the ICWA was upheld by the Supreme Court in 2023, states can do more to solidify or expand on ICWA provisions in their states. Some have passed legislation to solidify tribal sovereignty regarding child welfare proceedings and to coordinate with tribes to support children who are involved with or at risk of being involved with the child welfare system. Maine, for example, passed state ICWA legislation (SP 804) after the Supreme Court released its decision. Similarly, Wyoming’s 2023 Indian Child Welfare Act Task Force met in July 2023 after the decision to discuss how to address Indian sovereignty in child welfare and juvenile delinquency proceedings in their state.

Since 1978, 17 states (California, Colorado, Connecticut, Iowa, Maine, Michigan, Minnesota, Montana, Nebraska, Nevada, New Mexico, North Dakota, Oklahoma, Oregon, Washington, Wisconsin and Wyoming) have passed their own state ICWA laws. Some states codified federal guidelines to ensure the provisions would remain in place should the Supreme Court not uphold the ICWA. Similarly, some states have fully adopted federal law, while others have only adopted certain provisions. Other states have expanded on federal ICWA provisions to address agency, court and tribal needs in their state. 

For example, New Mexico collaborated with tribal leaders, including members of the New Mexico Tribal Indian Child Welfare Consortium, to develop the Indian Family Protection Act (HB 135, 2022). New Mexico’s Indian Family Protection Act has stricter requirements than those in the ICWA. In New Mexico, courts must notify tribes within 24 hours of any child welfare investigation, and they must provide interpreters for family members if needed. New Mexico also defines qualified expert witnesses and requires the state’s child welfare department to make active efforts to identify qualified expert witnesses. In addition, infants under the age of three months cannot be placed in any home that does not meet the state’s statutory placement preferences, which means that newborns cannot be placed outside of Native homes or homes approved by the child’s tribe. Finally, the state must take steps to ensure that siblings remain together when possible.

Other states have applied federal guidelines to voluntary custodial proceedings rather than only involuntary proceedings. Minnesota requires child-placing agencies or individual petitioner to notify the child’s tribe in all adoptive or pre-adoptive proceedings, including voluntary adoption proceedings (MN SF 667, 2023). In addition, some states have expanded ICWA guidelines to apply to tribes that are not federally recognized. California (CA SB 678, 2006) allows judges to grant non-federally recognized tribes the right to participate in dependency proceedings. Washington requires all petitions to include a statement alleging if there is a reason to know that a child may be an Indian child (WA 1227, 2021).

Additional Examples of Legislative Action

Contracts with States

States also have addressed Native children in their state’s child welfare system outside of state ICWA law.  Alaska established the 2017 Tribal Child Welfare Compact between the state’s Department of Health and Social Services and 18 tribal co-signers representing 161 federally recognized tribes. In 2022, Alaska passed legislation codifying the contract (HB 184). Before the bill was passed, the legislature passed HR 7 in 2019 outlining the severe disproportionality of Alaska Native children in the child welfare system, and it urged the governor to fully enter the Alaska Tribal Child Welfare Compact to deliver culturally relevant services to tribes. 

Other states have also codified state-tribal contracts, though none are as expansive as Alaska’s. For instance, Colorado, which now has a state ICWA law, updated its placement requirements in 2021 with HB 1151. Before the law went into effect, only county departments or child placing agencies could certify foster homes. HB 1151 allows federally recognized tribes to certify their own foster homes. In 2017, Utah passed SB 91. The legislation ensures Indian tribes’ licensure of foster care homes extends to homes on and off Indian country within the state. It also required Utah’s Division of Child and Family Services to cooperate and share information with Indian tribes.

Supporting Family Bonds and Kinship Care

States have also made efforts to promote sibling and family bonds and kinship care for Native children in the child welfare system. Michigan (SB 540, 2015) provides that the term “sibling” includes the term as defined by an Indian child’s tribal code or custom, and Maine also defines family members according to the law or custom of the Indian child's tribe (ME H 824, 2017). Arizona allows for children placed in unlicensed kinship foster care with an unrelated adult to receive cash assistance, and the assistance program was updated in 2017 to include children who are in the legal custody of a tribal court or tribal child welfare agency (SB 1108). New Mexico allows for tribal customary adoptions, in which a child is under the care and protection of adoptive parents without the termination of rights of the child’s birth parents (NM HM 51, 2019).        

States have also incorporated the principles of the ICWA into legislation by strengthening kinship care for all children in the child welfare system. Native children are placed in kinship care less frequently than non-Native children, and they are twice as likely to enter group homes, according to data analyzed by NICWA. Michigan allows people not related by birth, marriage or adoption but have a significant emotional relationship with the child to serve as fictive kin placements (SB 222, 2022). Maine allows grandparents to request the court for reasonable rights of visitation to their grandchildren in foster care (HB 824, 2017). Hawaii (SB 2790, 2018) requires that children in foster care have access to regular visits or contact with their siblings.

Improving Education and Training

Evaluations of ICWA implementation suggest that Native children are less likely than non-Native children to be placed with kin in part due to unreliable state compliance with ICWA requirements. States report complying with the ICWA is difficult because social workers, attorneys and judges lack education and training related to the law. Minnesota (M.S.A. § 260.751) provides training and consultation to county and social services agencies regarding state and federal law related to Indian children. In Minnesota, all guardian ad litems assigned to Native children must receive specific training related to the services available to Native children, their parent(s) and other custodians. Similarly, Nevada requires all agencies that provide child welfare services to train staff regarding ICWA (NV A 444, 2023).

Collaborating with Tribal Leaders

Many states that have developed their own Indian child welfare laws have done so in collaboration with tribal leaders. In addition to codifying the federal law into statute, Wyoming also established the Indian Child Welfare Act Task Force (WY H 19, 2023) to develop legislative recommendations related to ICWA. The task force members will include people appointed by the governor upon the recommendation of the Eastern Shoshone and the Northern Arapaho business councils. Minnesota also collaborated with tribes when it updated its state ICWA law in 2023, and the legislation was sponsored by Native legislators.