An Overview of the Indian Child Welfare Act (ICWA)

Judge William Thorne

Judge William A. Thorne, Jr. (ret.)
Reprint from National CASA Association Judge’s Page - April 2004


"Today many more professionals consider ICWA to be the beginning of a discussion about what children, ALL CHILDREN - not just Indian children, should receive when they encounter the nation's child welfare system. Others, however, are still locked into "saving" Indian children. There is much to be hopeful for, and much to be cautious about. I still believe ICWA is a major step in the right direction for not only Indian children, but all children." - Judge William Thorne, Jr.

 
In exploring ICWA, it is important to keep in mind that the problems sparking the adoption of ICWA were not, generally, the same problems encountered in non-Indian cases. While ASFA (the Adoption and Safe Families Act) addressed the problem of children staying too long in the foster care system, ICWA was directed to a different problem. Prior to the passage of ICWA, a multi- year congressional examination of Indian affairs detailed, among other things, problems with how the child welfare system was failing Indian children.1 Utilizing that information, Congress found that “an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children ...by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions.” 2 Congress further noted that “there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children,”3 and “that the States...have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families.” 4 Congress then declared a national policy “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...which will reflect the unique values of Indian culture.” 5 ICWA is that national policy.

Congress, in the exercise of its plenary authority in Indian affairs, created a special set of requirements applicable to Indian children, families, and tribes. Hinging on the special political status of Indian tribes and their members, not unlike the special political status accorded foreign diplomats, the imposition of special requirements is not racial in application, but political. That is, the special political status of Indian tribes permits the different treatment of tribes and tribal members and prevents ICWA from running aground on the shoals of equal protection and civil rights provisions. Application of ICWA is therefore limited to children who are “either (a) a member of an Indian tribe or (b) …eligible for membership in an Indian tribe and …the biological child of a member of an Indian tribe.” 6 ICWA is an attempt, in the exercise of a special federal relationship between tribes and the Federal government, to remedy the mistakes of the past, where Indian children were removed from their families, and communities, at an alarmingly high rate—in one state exceeding 20 times the rate for non-Indian children.

Congress utilized several principal mechanisms to correct this pattern of unnecessary removals. First, Congress created both a category of cases subject to exclusive tribal jurisdiction, as well as establishing a presumptive transfer of jurisdiction from state courts to tribal courts in an attempt to move a significant portion of the cases involving Indian children to judges who were familiar with the cultural norms of Indian communities. Second, for those cases remaining in state courts, Congress imposed a requirement that higher burdens of proof be applied when deciding questions of parental fitness, both for initial removal determinations and for the termination of parental rights. Third, Congress imposed a requirement that states provide active focused efforts to solve problems before the removal or termination of parental rights is justified. Fourth, Congress recognized that a child’s extended family, as well as other tribal families, should be the first option to provide surrogate care for Indian children removed from their caregivers. And finally, in creating ICWA, Congress provided a vehicle for tribes to actively participate in any state court proceeding involving tribal children.

In the interest of clarity, it is probably worth noting what ICWA is not. ICWA is not applicable to “a placement based upon an act which, if committed by an adult, would be deemed a crime or upon an award, in a divorce proceeding, of custody to one of the parents.” 7 Finally, state law may facilitate the specific goals of ICWA. “States and Indian tribes are authorized to enter into agreements with each other respecting care and custody of Indian children...” 8 In addition, “in any case where …State or Federal law provides a higher standard of protection to the rights of the parent or Indian custodian …than the rights provided under [ICWA], the…court shall apply the State or Federal standard.” 9 Some states, notably California, Iowa, and Michigan have attempted to address either particular aspects of enhanced protection, or attempted to implement the spirit, as well as the actual rules of ICWA, in a comprehensive manner for the Indian children and families of their particular state.

While ICWA is not perfect, it is a significant step forward in protecting the long-term best interests of Indian children, families and tribal communities.

Additional Resources:

California Judges Benchguide to the Indian Child Welfare Act calindian.org/home/113

Iowa state statute on Indian Child Welfare dhs.state.ia.us/docs/THE%20IOW A%20INDIAN%20CHILD%20W ELFARE%20ACT.pdf.

Presentation by Judge Thorne comparing ICWA with the Iowa state statute (PDF) casanet.org/download/tribal-casa/icwa-iowa-presentation.pdf

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Footnotes:
1 The American Indian Policy Review Commission of the United States Congress, report issued 1977.
2 25 U.S.C. § 1901(4) (2003)
3 25 U.S.C. § 1901(3) (2003)
4 25 U.S.C. § 1901(5) (2003)
5 25 U.S.C. § 1902 (2003)
6 25 U.S.C. § 1903(4) (2003)
7 25 U.S.C. § 1903(1) (2003)
8 25 U.S.C. § 1919(a) (2003)
9 25 U.S.C. § 1921 (2003)


About the Author
Judge William A. Thorne, Jr. (ret.), a Pomo/Coast Miwok Indian from northern California, was appointed to the Utah Court of Appeals in May 2000 by Gov. Michael O. Leavitt. He retired in September of 2013. He was a judge in the Third Circuit Court for eight years, having been appointed by Governor Norman Bangerter in 1986, and then served in the Third District Court for six years, having been appointed by Governor Leavitt in 1994. Judge Thorne received a B.A. from the University of Santa Clara in 1974 and a J.D. from Stanford Law School in 1977. Judge Thorne has served for over 34 years as a tribal court judge in Utah, Idaho, Montana, New Mexico, Colorado, Arizona, Wisconsin, South Dakota, Nevada, California, Nebraska, and Michigan. He is the former president and current vice-president of the National Indian Justice Center (a nonprofit that trains tribal court and other personnel around the country), and a former member of the Board of Directors for National CASA (Court Appointed Special Advocates, a nonprofit group that provides volunteer representation for abused and neglected children in court). He was formerly a member of the Board of Directors for the Evan B. Donaldson Adoption Institute (a nonprofit seeking to improve the level of research and practice related to adoptions), a former member of the Board of Trustees for the National Council of Juvenile and Family Court Judges and a former member of the ABA Steering Committee on the Unmet Legal Needs of Children. He is a former member of the Utah Judicial Council, the Board of Circuit Court Judges, and the Board of Directors for the National American Indian Court Judge’s Association. Since his retirement from the bench, Judge Thorne has worked to improve the lives of children and their families. 

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