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Breaking Down ICWA Basics

Most people don’t even know what ICWA is, and many who do only recognize it from sensational headlines on tabloids. Often you see “Indian” in parentheses or talks of blood percentage. I remember one article years ago that read like an old western describing the polite and quaint white family fostering a child and the seemingly drunken or crazed Native relatives in the courtroom.ICWA_1.jpg

Of course, no one mentions how children like Lexi in California had been in touch with their relatives throughout their time in foster care as their family was preparing to take them in, or bothers to remember that foster parents shouldn’t just assume they can adopt any child they foster. That isn’t how the system works. But Native children and the Indian Child Welfare Act are often thrust into the spotlight as easy fodder for those who want to push their placement request.

So here’s a very brief breakdown of ICWA. First passed 1978, ICWA was meant to prevent Native American children from being taken and families being broken apart without just cause. This was a reactionary measure coming after generations of Native children being bartered off to white families or carted off to boarding schools without the consent of their parents. These children were often abused and prevented from retaining any of their tribal traditions. Several generations suffered trauma and tribes dwindled without their youth to carry on their culture.

While ICWA is considered the “gold standard” of federal mandates related to child welfare, it doesn’t actually say anything above or beyond the standard practice except, of course, notifying the child’s tribe. So here is the gist of ICWA, if a child under the age of 18 is a registered member of a federally recognized tribe or is eligible for membership and has a parent who is a registered member, CPS caseworkers must do the following:

  • Provide active efforts to the child’s family
    • This means helping to prevent the need to remove a child or working to correct a situation so a child can be reunited with their parents following a removal.
  • Identify a placement that fits under ICWA
    • Preference is given to family members and then eligible foster families within a child’s tribe before a non-tribal foster is considered.
  • Notify the child’s tribe and parent’s in a timely manner of child custody proceedings
  • Work actively to involve the child’s, tribe, parents, and extended family in case proceedings and other important decisions.

None of that seems dissimilar to how normal welfare cases should go. Of course parents should be involved and other relatives who might be able and willing to care for a child should the parents not be able to correct the issue requiring removal of their child. Shouldn’t family be the first place we look when fostering all children when/if at all possible? The only difference is the mention of looping in a child’s tribe. This is important because it explains what many don’t seem to understand about ICWA.

This law is not about Indian blood percentage or race in any way, shape, or form (no matter how the Goldwater Institute might claim otherwise). As registered or eligible to register members of a tribe, these children are given the protections of ICWA based not on race but on their citizenship within a dependent sovereign nation.

To offer an example by comparison, you would not take a child from Canada and place them with a foster family in Australia, just because the two nations have ties to Great Britain would you? Wouldn’t you first exhaust efforts in Canada? So why, would you not first exhaust efforts within a tribal nation that shares similar ways with the child’s own family?

Again, this is not a dramatic measure, just a common sense step meant to prevent the further disruption to indigenous family life caused by state and federal governments plus private mainstream Americans for generations.

While ICWA is still not always adhered to, in fact a disproportionately large number of Native children are in foster care in the United States, often it works well for those who do follow the law. Cases like those of Baby Veronica and Lexi are sensational exceptions where not the whole story made it to most publications. Many made it about blood and race instead of citizenship, best welfare practices, and the truth of all the history of each child’s case.

I could go into how Indian Country needs more funding to train and equip Native foster families, but I’ll leave that for a different time. After all this heavy content, I want to leave you with a link to this heartwarming story of what happens when ICWA is acknowledged and Native children end up in the best possible home for them as individuals with blessings from family and tribe.

* This blog is meant to be read in conjunction with ICWA Preserving Families: A Personal Narrative.


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