There are currently 566 federally recognized Indian Tribes and, according to the 2010 Census, 5.2 million people identify as American Indian/Alaska Native (AI/AN), alone or in combination with other races, with over half identifying as AI/AN alone. At the end of FFY 2012 there were 8,344 AI/AN children in foster care. While this demonstrated a 14 percent decrease since 2002, Native American children have had the highest rate of representation in foster care since 2009.
In 1978, because of the disproportionately high number of Indian children removed from their homes and placed in non-Indian foster care or adoptive homes, the Indian Child Welfare Act was enacted to govern the removal of American Indian children and establish standards for the placement of American Indian children.
Below are resources about ICWA, including background, basic provisions, federal guidance, and courts. Also included below is general information regarding child welfare in Indian country, including trauma-informed care, relative caregivers, and social services among urban AI/AN populations.
Indian Child Welfare Act
Check out NCSL's ICWA Summary for a look at the major provisions of ICWA and NCSL's State Statutes Related to the Indian Child Welfare Act.
The Indian Child Welfare Act (ICWA) of 1978 is a federal law that governs the removal and out-of-home placement of American Indian children. ICWA 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 law was enacted after recognition by the federal government that American Indian children were being removed from their homes and communities at a much higher rate than non-Native children. Although the number of American Indian/Alaska Native children removed from their homes and/or placed with non-native families has dropped, American Indian/Alaska Native populations are still disproportionately represented in the child welfare system.
Bureau of Indian Affairs (BIA) New Final Rule on ICWA
Since the federal enactment of ICWA, guidance to state legislatures, child welfare agencies, and courts has been limited, if non-existent. With no federal agency in charge of ensuring compliance, ICWA has been interpreted and enforced inconsistently across the country. In March of 2015 a Research and Practice Brief: Measuring Compliance with the Indian Child Welfare Act was released. It details the history of ICWA, reasons for inconsistent compliance and recommendations for improving consistency and compliance.
Because of this inconsistency and, in many instances, confusion, on June 14, 2016, the Bureau of Indian Affairs (BIA) published a new final rule to govern the implementation of the Indian Child Welfare Act of 1978 (ICWA) by state courts and child welfare agencies. The new rule includes changes to current regulations that govern notice to state agencies under ICWA and clarifies and strengthens implementation of the Act’s requirements in Indian child custody proceedings to ensure that Indian families and tribal communities do not face unwarranted child removal. These regulations complement recently published Guidelines for State Courts and Agencies in Indian Child Custody Proceedings, reflect recommendations made by the Attorney General’s Advisory Committee on American Indian/Alaska Native Children Exposed to Violence, and address significant developments in jurisprudence since ICWA’s inception.
Among other important provisions, the final rule clarifies:
- When ICWA applies
- Steps involved in conducting a thorough inquiry at the beginning of a child custody proceeding as to whether the child is an “Indian child” requiring state courts to ask whether ICW A applies at the beginning of each proceeding. Specifically, the final rule requires state courts to ask all participants at the beginning of every child custody proceeding (including voluntary proceedings) whether they know the child is an "Indian child," subject to ICWA)
- The distinction between emergency proceedings and other child custody proceedings involving Indian children
- Uniform requirements for prompt notice to parents and Tribes in involuntary child custody proceedings
- That a state court determines whether the state or the Tribe has jurisdiction
- Interpretation of “qualified expert witness”
- When and what placement preferences apply in foster care, pre-adoptive and adoptive placements
- ICWA applicability in voluntary placement proceedings
- Rights of adult adoptees to information
Working with Judges and the Courts
While state child welfare agencies and state legislatures have a vested interest in the proper interpretation and implementation of the Indian Child Welfare Act, the day-to-day enforcement of ICWA happens in courts. See the below resources by and for the benefit of state courts:
The Family First Prevention Services Act of 2018 and Indian Child Welfare
President Donald Trump signed the Bipartisan Budget Act of 2018 (H.R. 1892) on Feb. 9, 2018; included in the act is the Family First Prevention Services Act, which has the potential to dramatically change child welfare systems across the country. See NCSL's summary of the Act and 2019 legislation. One of the major areas this legislation seeks to change is the way Title IV-E funds can be spent by states, territories and tribes with an approved Title IV-E plan. Title IV-E funds previously could be used only to help with the costs of foster care maintenance for eligible children; administrative expenses to manage the program; and training for staff, foster parents, and certain private agency staff; adoption assistance; and kinship guardianship assistance.
With the Family First Prevention Services Act states, territories, and tribes have the option to use these funds for prevention services that would allow “candidates for foster care” to stay with their parents or relatives. States will be reimbursed for prevention services for up to 12 months. A written, trauma-informed prevention plan must be created, and services will need to be evidence-based.
The Family First Prevention Services Act also seeks to curtail the use of congregate or group care for children and instead places a new emphasis on family foster homes. With limited exceptions, the federal government will not reimburse states for children placed in group care settings for more than two weeks. Approved settings, known as qualified residential treatment programs, must use a trauma-informed treatment model and employ registered or licensed nursing staff and other licensed clinical staff. The child must be formally assessed within 30 days of placement to determine if his or her needs can be met by family members, in a family foster home or another approved setting.
Child Welfare in Indian Country
- Poster 1: Culture, Removal, Termination of Parental Rights, Adoption
- Poster 2: Jurisdiction, Response to Child Abuse and Neglect, Paternity, Tribal-State Relations
Title IV-E Agreements
The Fostering Connections to Success and Increasing Adoptions Act of 2008 (Fostering Connections Act), for the first time, allowed tribes to receive Title IV-E funds directly from the federal government or through agreements with the state. For more on the history of Title IV-E, the Fostering Connections Act and the resulting state-tribal agreements, see A Survey and Analysis of Select Title IV-E Tribal-State Agreements, a report released in 2014 by the Association on American Indian Affairs, in partnership with Casey Family Programs.
Integrating Traditional Healing in Trauma Treatments
The National Native Children’s Trauma Center, housed at the University of Montana, is a National Child Traumatic Stress Initiative program funded by the U.S. Substance Abuse and Mental Health Services Administration (SAMHSA). The Center works to integrate Native American cultural activities into evidence-based trauma-informed care.
In addition, the Center for Advanced Studies in Child Welfare, from the University of Minnesota, School of Social Work, issued a report that discussed traumatic stress and trauma-informed care, highlighting the Center’s support of Native communities through cultural adaptations of trauma treatments.
Social Services Use Among Urban American Indian Families
In July 2014, the Administration for Children and Families (ACF) released a literature review of a study commissioned by the Office of Planning, Research and Evaluation of the Administration for Children and Families and the ACF Administration for Native Americans. Read the full review, Understanding Urban Indians’ Interactions with ACF Programs and Services for a deeper dive into the services available and the conclusions reached.
What Works in Indian Country: Evidence-Based Programs
The Tribal Maternal, Infant, and Early Childhood Home Visiting Program (Tribal MIECHV) is a home visiting program mirrored after and funded by a 3% set-aside from the larger Maternal, Infant, and Early Childhood Home Visiting Program (MIECHV). Click here to view a slide presentation on the program.
Adapting Evidence-Based Treatments for Use with American Indian and Native Alaskan Children and Youth, Regional Research Institute for Human Services, Portland State University.
Medicaid and Affordable Care Act —Tribes, Indian Children and Youth
Medicaid and Children’s Health Insurance Program: Best Practices in Serving American Indian and Alaska Native Populations: On behalf of the Centers for Medicaid and Medicare Services, Kauffman & Associates, Inc. (KAI) conducted a study on Medicaid and CHIP outreach and enrollment strategies to identify best practices in outreach and enrollment for American Indian/Alaska Native (AI/AN) populations.
Child Welfare and the Affordable Care Act: Key Provisions for Foster Care Children and Youth
About This NCSL Project
The Denver-based child welfare project staff focuses on state policy, tracking legislation and providing research and policy analysis, consultation, and technical assistance specifically geared to the legislative audience. Denver staff can be reached at (303) 364-7700 or firstname.lastname@example.org.
NCSL staff in Washington, D.C. track and analyze federal legislation and policy and represent state legislatures on child welfare issues before Congress and the Administration. Staff in D.C. can be reached at (202) 624-5400 or email@example.com.