The Indian Child Welfare Act (ICWA):
A Legal Overview
Jane M. Smith
Legislative Attorney
January 28, 2013
Congressional Research Service
7-5700
www.crs.gov
R42047
CRS Report for Congress
Pr
epared for Members and Committees of Congress
The Indian Child Welfare Act (ICWA): A Legal Overview
Summary
From the 19th century to the passage of the Indian Child Welfare Act (ICWA) in 1978, the federal
government, states, and private adoption agencies sought to remove Indian children from their
tribes and families in order to “civilize” the children or provide them with better lives. Congress
passed the ICWA to end this practice and the high rate at which Indian children were being
removed from their homes and placed with non-Indians.
One survey reported that 25%-35% of all Indian children were being separated from their families
and placed in foster homes, adoptive homes, or institutions. The House Committee on Interior
and Insular Affairs termed the disparity between placement rates for Indians and non-Indians
“shocking.” The committee concluded that many non-Indian social workers who recommended
removal of Indian children from their families and communities were ignorant of Indian cultural
values and social norms, and biased against typical Indian family life. The report indicated that
this bias too often resulted in finding neglect or abandonment when there was none. The
committee noted also that the decision to take Indian children from their natural homes was
frequently carried out without due process of law and that most cases did not go through
adjudication because parents voluntarily waived their parental rights in the face of coercion from
the state.
Accordingly, Congress passed the ICWA to establish standards for removing Indian children from
their homes, prioritizing placement of Indian children with extended family members and other
Indians, and giving tribes a recognized role in the placement of Indian children by, among other
things, recognizing tribal court jurisdiction over Indian child placements and adoptions. In
addition, the ICWA includes important procedural protections for Indian parents, custodians, and
tribes to provide due process of law.
In Adoptive Couple v. Baby Girl, the U.S. Supreme Court granted a writ of certiorari in a case
from the South Carolina supreme court in which an unwed non-Indian mother placed her child,
whose biological father is a member of the Cherokee Nation, with a non-Indian couple without
the father’s consent. The state supreme court upheld a lower court decision ordering the adoptive
parents to turn over the child to her father. The Court will determine the validity of the “existing
Indian family” doctrine and whether an unmarried Indian father must establish his paternity under
state law in order to assert rights under the ICWA.
Congressional Research Service
The Indian Child Welfare Act (ICWA): A Legal Overview
Contents
Background ...................................................................................................................................... 1
When the ICWA Applies .................................................................................................................. 2
The “Existing Indian Family” Doctrine ..................................................................................... 3
Adoptions Under the ICWA ............................................................................................................. 4
Termination of Parental Rights .................................................................................................. 5
The ICWA’s Placement Preferences .......................................................................................... 6
Procedural Protections ............................................................................................................... 7
Consent ................................................................................................................................ 7
Notice .................................................................................................................................. 8
Right to Intervene ................................................................................................................ 9
Right to Counsel .................................................................................................................. 9
Reports and Other Documents ............................................................................................ 9
Remedial Services and Rehabilitation Programs .............................................................. 10
Federal Court Review........................................................................................................ 10
Foster Care Placement Under the ICWA ....................................................................................... 11
The ICWA’s Jurisdictional Scheme ................................................................................................ 12
Exclusive Jurisdiction .............................................................................................................. 12
Concurrent Jurisdiction ........................................................................................................... 14
Proposed Amendments to the ICWA ............................................................................................. 14
Conclusion ..................................................................................................................................... 15
Contacts
Author Contact Information........................................................................................................... 16
Congressional Research Service
The Indian Child Welfare Act (ICWA): A Legal Overview
Background
From the 19th century to the passage of the Indian Child Welfare Act (ICWA)1 in 1978, the federal
government, states, and private agencies sought to separate Indian children from their tribes and
families in order to “civilize” the children or provide them with better lives.2 Congress undertook
to reverse this practice when it passed the ICWA in response to the high rate at which states were
separating Indian children from their parents, families, and tribes through involuntary removal of
Indian children from Indian homes and involuntary termination of parental rights.3 One survey
reported that “approximately 25–35 percent of all Indian children are separated from their
families and placed in foster homes, adoptive homes, or institutions.”4 The House Committee on
Interior and Insular Affairs—the predecessor of the present-day House Committee on Natural
Resources—termed the disparity between placement rates for Indians and non-Indians
“shocking.”5 The committee expressed concern about the welfare of Indian children who are
traumatized by removal from their families and then “adjusting to a social and cultural
environment much different from their own.”6 The committee concluded, “[i]n judging the fitness
of a particular family, many social workers, ignorant of Indian cultural values and social norms,
make decisions that are wholly inappropriate in the context of Indian family life and so they
frequently discover neglect or abandonment where none exists.”7 The committee noted also that
“[t]he decision to take Indian children from their natural homes is, in most cases, carried out
without due process of law” and that most cases did not go through adjudication because parents
voluntarily waived their parental rights in the face of coercion from the state.8
Congress declared two policy aims of the ICWA: (1) “to protect the best interests of Indian
children,” and (2) “to promote the stability and security of Indian tribes and families.”9 The ICWA
is premised on the belief that “protection of the child’s relationship with the tribe is in the child’s
best interest.”10 It identifies Indian children as a “resource” that is “vital to the continued
existence and integrity of Indian tribes.”11 Thus, the ICWA recognizes that Indian tribes have a
unique interest in their minor members or potential members. The Bureau of Indian Affairs (BIA)
described the ICWA’s policy as follows: “Congress through the [ICWA] has expressed its clear
preference for keeping Indian children with their families, deferring to tribal judgment on matters
concerning the custody of tribal children, and placing Indian children who must be removed from
their homes within their own families or Indian tribes.”12
1 25 U.S.C. §§1901 et seq.
2 Barbara Ann Atwood, Children, Tribes, and States: Adoption and Custody Conflicts over American Indian Children
155-158 (2010); see also Lorie M. Graham, “The Past Never Vanishes”: A Contextual Critique of the Existing Indian
Family Doctrine, 23 Am. Ind. L. Rev. 1 (1998-1999).
3 H.Rept. 95-1386, at 8-11.
4 Id. at 9.
5 Id.
6 Id.
7 Id. at 10.
8 Id. at 11.
9 25 U.S.C. §1902.
10 Chester County Dep’t of Social Services. v. Coleman, 372 S.E.2d 912, 914 (S.C.Ct. App. 1988).
11 25 U.S.C. §1901(3).
12 Bureau of Indian Affairs Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67,584,
67,585 (1979) (BIA Guidelines).
Congressional Research Service
1
The Indian Child Welfare Act (ICWA): A Legal Overview
To achieve these policy aims, the ICWA establishes “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 services programs.”13 In addition, the ICWA
provides procedural protections for parents and tribes in state court proceedings.
When the ICWA Applies
The ICWA applies to child custody proceedings involving Indian children. “Child custody
proceedings” include “foster care placement,” “termination of parental rights,” “preadoptive
placement,” and “adoptive placement.”14 It does not apply to placements resulting from juvenile
proceedings concerning an act which if committed by an adult would be a crime, or custody
determinations made in conjunction with divorce proceedings.15 Although the ICWA is associated
primarily with involuntary child custody proceedings, it applies to voluntary proceedings as
well.16 The ICWA defines “Indian child” as “any unmarried person who is under age eighteen and
is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is
the biological child of a member of an Indian tribe.”17
The BIA Guidelines18 provide “[w]hen a state court has reason to believe a child involved in a
custody proceeding is an Indian, the state court shall seek verification of the child’s status from
either the [BIA] or the child’s tribe.”19 Under the BIA Guidelines, the tribe’s determination of the
child’s or parent’s status as a member or the child’s status as eligible for membership is
conclusive.20 In the absence of a tribal determination, the BIA’s determination is conclusive.21
13 Id.
14 25 U.S.C. §1903(1).
15 Id.
16 Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30 (1989).
17 25 U.S.C. §1903(4).
18 The BIA Guidelines are not binding on the states. Rather, they are intended to provide guidance to state courts in
administering the ICWA. Courts frequently follow the BIA Guidelines as an administrative interpretation of the ICWA.
See, e.g., In re C.W., 479 N.W. 2d 105, 113 (Neb. 1992) (relying on BIA Guidelines); Felix Cohen’s Handbook of
Federal Indian Law (2005) (Cohen) 11.02[1] citing In re Junious M., 193 Cal. Rptr 40, 43 n7 (Ct. App. 1983).
19 BIA Guidelines, supra note 12 at 67,586.
20 Id. In Nielson v. Ketchum, 640 F.3d 1117 (10th Cir. 2011), however, the Court of Appeals for the Tenth Circuit
rejected the tribe’s determination that the child was a member. The Cherokee Nation adopted a “Citizenship Act,”
which made every newborn who was direct descendant of an original enrollee a temporary citizen of the Cherokee
Nation for a period of 240 days following birth. The purpose of the act was to “protect[] the rights of the Cherokee
Nation under the ICWA.” Id. at 2. The child at issue was a direct descendant of an original enrollee but his mother was
not enrolled. Thus, the ICWA applied only if the Citizenship Act effectively conferred citizenship on him for purposes
of the ICWA. Noting that Congress rejected a definition of Indian child which would have included all children eligible
for membership such as the child at issue, the court rejected the tribe’s position that the child was a member. The court
concluded that involuntary temporary membership, such as that conferred by the Citizenship Act, did not qualify as
membership for the purposes of the ICWA.
21 Id. The BIA Guidelines identify the following common circumstances as providing reason to believe that a child may
be an Indian child: a party, an Indian tribe, or a public or private agency informs the court the child is Indian; any
public or state licensed agency involved in child protection or family support obtains information indicating the child is
Indian; the child gives reason to believe he or she is Indian; the residence or domicile of the child or the parents is a
predominantly Indian community; and an officer of the court involved in the proceeding has knowledge that the child
may be Indian.
Congressional Research Service
2
The Indian Child Welfare Act (ICWA): A Legal Overview
The “Existing Indian Family” Doctrine
Although most jurisdictions have rejected the “existing Indian family” doctrine, the courts of
seven states have adopted it to determine whether the ICWA applies.22 Under this doctrine, the
ICWA does not apply when “neither the child nor the child’s parents have maintained a
significant social, cultural, or political relationship with his or her tribe.”23 Courts usually apply
the doctrine in cases involving children of mixed heritage who have been living in a non-Indian
environment for an extended period.24 The Kansas Supreme Court first formulated the doctrine
based on the belief that, “[a] careful study of the legislative history behind the [ICWA] and the
[ICWA] itself discloses that the overriding concern of Congress and the proponents of the
[ICWA] was the maintenance of the family and tribal relationships existing in Indian homes and
to set minimum standards for the removal of Indian children from their existing Indian
environment.”25
The doctrine is applied differently depending on the state. Alabama courts have limited the
existing Indian family doctrine to circumstances where the parents are unmarried and the non-
22 The following states have judicially adopted the existing Indian family doctrine: Alabama (S.A. v. E.J.P., 571 So.2d
1187 (Ala. App. 1990)); Indiana (In re Adoption of T.R.M., 525 N.E.2d 298 (Ind. 1988), cert. denied sub nom, In re
Adoption of T.R.M., 490 U.S. 1069 (1989)); Kentucky (Rye v. Weasel, 934 S.W.2d 257 (Ky. 1996); Louisiana (In re:
James Ronald Hampton and Jan Harris Milz Hampton., 658 So.2d 331 (La. Ct. App. 1995), cert. denied, 517 U.S.
1158 (1996)); Missouri (In re S.A.M., 703 S.W.2d 603 (Mo. Ct. App. 1986)); Nevada (In the Matter of the Parental
Rights as to N.J., 221 P.3d 1255, 1264 (Nev. 2009)); and Tennessee (In re Morgan, 1997 Tenn. App. LEXIS 818
(Tenn. Ct. App. 1997)). The following states have rejected the doctrine: Alaska (In re Adoption of Crews, 781 P.2d 973
(Alaska 1989), cert. denied sub nom, Jasso v. Finney, 494 U.S. 1030 (1990)); Arizona (Michael J. Jr. v. Michael J. Sr.,
7 P.3d 960 (Ariz. Ct. App. 2000)); Idaho (In re Baby Boy Doe, 849 P.2d 925 (Idaho 1993), cert. denied sub nom,
Swenson v. Oglala Sioux Tribe, 510 U.S. 960 (1993)); Illinois (In re Adoption of S.S., 662 N.E.2d 832 (Ill. 1993)); Iowa
(Iowa Code §232B.5 (2011)); Kansas (Matter of A.J.S., 204 P.3d 543 (Kan. 2009)); Michigan (In re Elliott, 554
N.W.2d 32 (Mich. Ct. App. 2000)); Minnesota (In re Welfare of S.N.R., 617 N.W.2d 77 (Minn. Ct. App. 2000));
Montana (In re Adoption of Riffle, 922 P.2d 510 (Mont. 1996)); New Jersey (In re Adoption of a Child of Indian
Heritage, 543 A.2d 925 (N.J. 1988)); New York (In the matter of Baby Boy C. Jeffrey A., 805 N.Y.S.2d 313 (N.Y. App.
2005)); North Dakota (Hoots v. K.B.(In re A.B.), 663 N.W.2d 625 (N.D. 2003) cert. denied, 541 U.S. 972 (2004));
Oklahoma (Matter of Baby Boy L., 103 P.3d 1099 (Okla. 2004)); South Dakota (Matter of Adoption of Baade, 462
S.W.2d 485 (S.D. 1990)); Utah (In re D.A.C., 933 P.2d 993 (Utah Ct. App. 1997)); Washington (Rev. Code Wash.
§13.34.040(3)); and Wyoming (S.N.K. v State, 78 P.3d 1032 (Wyo. 2005)). In California the state supreme court has
not ruled on the issue and the lower courts are divided. In re Alicia S. 76 Cal. Rptr 2d 507 (Ct. App. 1998) (rejecting
doctrine); In re Bridget R., 49 Cal. Rptr 2d 507 (Ct. App. 1996) (accepting doctrine and finding it necessary for
constitutionality of the ICWA).
23 Atwood, supra note 2 at 204; see In re: James Ronald Hampton and Jan Harris Milz Hampton, 658 So.2d 331, 336-
337 (Ct. App. La. 1995), cert. denied, 517 U.S. 1158 (1996) (court determined that even if it applied the ICWA and did
not terminate Indian mother’s rights, the child would not be raised in an Indian family because the Indian mother had
few ties with her Indian heritage).
24 Id. at 206-207, 209; see, e.g., In the Matter of the Parental Rights as to N.J., 221 P.3d 1255 (Nev. 2009) (court
applied the existing Indian family doctrine in termination proceeding in which non-Indian mother objected and Indian
father and tribe did not object); In re: James Ronald Hampton and Jan Harris Milz Hampton, 658 So.2d 331, 336-337
(Ct. App. La. 1995), cert. denied, 517 U.S. 1158 (1996) (court applied the existing Indian family doctrine because it
found the child’s father was unknown and her mother was a member of the Cheyenne River Sioux Tribe who had not
lived on the reservation since she was a child and did not maintain ties with her Indian heritage; the child was placed
with a non-Indian family and the court determined application of the ICWA would not result in the child being raised in
an Indian family); S.A. v. E.J.P., 571 So.2d 1187 (Ala. App. 1990) (court applied the existing Indian family doctrine
when child was illegitimate, non-Indian mother placed child for adoption, and Indian father had had little contact with
the child).
25 Matter of the Adoption of Baby Boy L., 643 P.2d 168, 175 (Kan. 1982).
Congressional Research Service
3
The Indian Child Welfare Act (ICWA): A Legal Overview
Indian mother voluntarily places the child for adoption.26 In Ex Parte C.L.J.,27 the Alabama Court
of Civil Appeals explicitly limited the doctrine to those circumstances and declined to apply the
doctrine to a child whose mother did not obtain membership in her tribe until after the child had
been removed from her custody and it was clear the state was going to move to terminate her
parental rights. Even though the child had not been raised in an Indian family, the court held the
ICWA applied. In contrast, the Kentucky Supreme Court applied the doctrine to a proceeding
involving a child who was a ward of the tribal court but who had lived with a non-Indian family
for years.28 The court gave no reason as to why the tribal court would not continue to have
exclusive jurisdiction over the child. Indiana, Louisiana, Missouri, and Tennessee courts apply it
even when the mother is Indian.29 In In re: James Ronald Hampton,30 the Louisiana supreme
court applied the existing Indian family doctrine to deprive an Indian mother of her rights under
the ICWA to revoke her consent to a voluntary adoption by a non-Indian family. Nevada courts
have determined to apply the existing Indian family doctrine on a “case-by-case basis to avoid
results that are counter to the ICWA’s policy goal of protecting the best interest of a Native
American child.”31
The existing Indian family doctrine appears to be on the decline. The Kansas and South Dakota
supreme courts, initially leading courts in adopting the doctrine, have since rejected it.32
Washington, Minnesota, Oklahoma, Wisconsin, and Iowa have rejected it through legislation.33
In Adoptive Couple v. Baby Girl, the South Carolina supreme court declined to adopt the
doctrine.34 The U.S. Supreme Court has since granted a writ of certiorari in the case to resolve
the split between jurisdictions on whether the existing Indian family doctrine is valid.35 In this
case, an unwed non-Indian mother agreed to an adoption of her child, whose biological father is a
member of the Cherokee Nation, by non-Indians. The father indicated informally that he would
sign away his parental rights rather than pay child support. When the father learned the child was
being adopted, he contested the adoption, asserting his rights under the ICWA. The South
Carolina supreme court declined to apply the existing Indian family doctrine and upheld a lower
court order which required the adoptive parents to turn over the child to the father.
Adoptions Under the ICWA
To counter the high rate at which states were removing Indian children from their families and
Indian communities, the ICWA provides uniform and heightened standards for involuntarily
26 Ex Parte C.L.J., 946 So.2d 880 (Ala. Civ. App. 2006).
27 Id.
28 Rye v. Weasel, 934 S.W.2d 257 (Ky. 1996).
29 Matter of Adoption of T.R.M., 525 N.E.2d 298 (Ind. 1988); In re: James Ronald Hampton and Jan Harris Milz
Hampton, 658 So.2d 331 (La. 1995); C.E.H. v. R.H., 8837 S.W.2d 947 (Mo. Ct. App. 1992); In re: Morgan, 1997
Tenn. App. LEXIS 818 (Tenn. App. 1997).
30 In re: James Ronald Hampton, 658 So.2d 331 (La. 1995).
31 In the Matter of the Parental Rights as to N.J., 221 P.3d 1255, 1264 (Nev. 2009).
32 Matter of A.J.S., 204 P.3d 543 (Kan. 2009); Matter of Adoption of Baade, 462 S.W.2d 485 (S.D. 1990).
33 R.C.W. §26.33.040(1)(a); Minn. Stat. Ann. §260.771; Okla. Stat. Ann. Tit. 10, §40.1; Wisc. Stat. Ann.
§938.028(3)(a); Iowa Code §232B.5(2).
34 731 S.E. 2d 550, 640 n. 17 (2012), cert. granted, 2013 U.S. LEXIS 11 (2013).
35 Adoptive Couple v. Baby Girl, 2013 U.S. LEXIS 11 (2013).
Congressional Research Service
4
The Indian Child Welfare Act (ICWA): A Legal Overview
terminating parental rights, preferences for placing Indian children in Indian adoptive homes, and
procedural protections for parents and Indian tribes in state court proceedings.
Termination of Parental Rights
The termination of parental rights occurs when the parent-child relationship is legally severed.
Termination can be voluntary, such as when parents consent to adoption, or involuntary, upon a
finding of abandonment, neglect, or abuse of the child. Upon termination of parental rights, a
child is available to enter a parent-child relationship with adoptive parents.
In Adoptive Couple v. Baby Girl, the Supreme Court granted a writ of certiorari to determine the
circumstances under which an unwed Indian father of a child qualifies as a parent under the
ICWA. 36 The ICWA provides that the term “parent,” “does not include the unwed father where
paternity has not been acknowledged or established.”37 The ICWA does not specify how paternity
must be “acknowledged or established” in order for the father to enjoy the protections of the
ICWA. The plaintiffs in Adoptive Couple argued that the court should apply the state law
standards for determining whether an unwed father must consent to the adoption of his child,
which the Indian father in this case failed to satisfy. The South Carolina supreme court declined to
do so and found that the Indian father had satisfied the ICWA’s requirements by contesting the
adoption as soon as he knew about it and submitting to court-ordered DNA testing.38
The ICWA does not restrict a parent’s ability to voluntarily terminate his or her parental rights. It
limits the circumstances under which state courts may terminate parental rights involuntarily.
Because Congress found that frequently states were terminating the parental rights of Indian
parents based on biased evidence of neglect and abandonment, Section 1912(f) of the ICWA
establishes the evidence that state courts must consider, the standard of proof, and the substantive
standard that the evidence must establish in order for a state court to involuntarily terminate
parental rights. A court must find “beyond a reasonable doubt,” based on evidence which must
include expert testimony, that “the continued custody of the child by the parent or Indian
custodian is likely to result in serious emotional or physical damage to the child.”39 The “beyond
a reasonable” doubt standard is higher than the “clear and convincing evidence” standard required
for due process and employed by the states in parental termination proceedings,40 and is
“designed to fulfill [the] ICWA’s goal of ending practices by state social welfare personnel that
result in removal of Indian children from their homes based on nonconformity with non-Indians’
stereotypes of what a proper family should be.”41
The BIA Guidelines explain that removal of an Indian child from his or her family “must be based
on competent testimony from one or more experts qualified to speak specifically to the issue of
whether continued custody by the parents or Indian custodians is likely to result in serious
36 2013 U.S. LEXIS 11 (2013).
37 25 U.S.C. §1903(9).
38 Adoptive Couple, 731 S.E. 2d at 644.
39 25 U.S.C. §1912(f).
40 Atwood, supra note 2 at 176-177; see also, In the Matter of the Parental Rights as to N.J., 221 P.3d 1255, 1260
(Nev. 2009) (discussing differences between the state standard and the ICWA standard).
41 See H.Rept. 95-1386, supra note 3 at 10; Cohen, supra note 18 at §11.04[4].
Congressional Research Service
5
The Indian Child Welfare Act (ICWA): A Legal Overview
physical or emotional damage to the child.”42 In requiring expert witness testimony by a witness
with relevant experience or education, Section 1912 seeks to counter the bias of non-Indians
against Indian communities, families, and circumstances cited in the ICWA.43 The House Report
from the Committee on Interior and Insular Affairs explained the need for these standards with
statistical evidence that physical abuse existed in just one percent of the cases in which an Indian
child was removed from the family.44 In the remaining 99 percent of the cases, the state gave
vague reasons such as “neglect” or “social deprivation” or presented evidence that somehow
living with the parents damaged the child emotionally.45 By imposing strict standards and
requiring expert testimony, the ICWA seeks to limit the circumstances in which Indian children
are removed from their homes to those that present a real danger to the child.
Most state courts do not require expert testimony when the evidence justifying removal of the
child is “culturally neutral.”46 Therefore, a state court will not get expert testimony if the basis for
removal is physical abuse such as shaken baby syndrome or newborn drug addiction.47
The ICWA’s Placement Preferences
In the interest of maintaining Indian children within the Indian community and tribe, section 1915
establishes the order of preference for placement of Indian children that state courts must follow.
Indian tribes may alter the order of preference by resolution.48
Section 1915(a) provides that in “any adoption proceeding” in a state court, “a preference shall be
given, in the absence of good cause to the contrary, to a placement with (1) a member of the
child’s extended family; (2) other members of the Indian child’s tribe; or (3) other Indian
families.”49 By its terms, Section 1915 applies to all adoptions, voluntary and involuntary. Some
view these preferences as a departure from the general federal policy of disfavoring race
matching in adoptions and foster placements.50
The BIA Guidelines identify the following considerations for determining good cause: the request
of the parents or the child, if the child is of sufficient age; “the extraordinary physical or
emotional needs of the child as established by testimony of a qualified expert witness,” and the
unavailability of suitable families for placement after “diligent” search.51 The party seeking to
avoid the statutory preferences bears the burden of establishing good cause.52 The states are
42 BIA Guidelines, supra note 12, at 65,953.
43 Cohen, §11.04[4]; Cynthia R. Mabry and Lisa Kelly, Adoption Law: Theory, Policy, and Practice (2006) 399
(Adoption Law), quoting Matter of Welfare of B.W., 454 N.W.2d 437 (Minn. App. 1990).
44 H.Rept. 95-1386, supra note 3 at 10.
45 Id.
46 Atwood, supra note 2 at 178.
47 Id.
48 25 U.S.C. §1915(c).
49 25 U.S.C. §1915(a).
50 Atwood, supra note 2 at 185-193; Adoption Law, supra note 43 at 411-413 (explaining that the federal Interethnic
Adoption Provisions, Section 1808 of P.L. 104-188, prohibit placement agencies from denying any individual the
opportunity to be an adoptive or foster parent on the basis of race.)
51 BIA Guidelines, supra note 12 at 67,594.
52 Id.
Congressional Research Service
6
The Indian Child Welfare Act (ICWA): A Legal Overview
divided on whether the best interests of the child constitute good cause to depart from the
placement preferences.53 Those state courts that find good cause based on the child’s best interests
generally place greater importance on the child’s permanent placement,54 while those state courts
that reject the child’s best interests as a basis for a good cause finding generally place greater
importance on the child’s identity as an Indian and the tribe’s interest in that identity.55
Procedural Protections
The House Report from the Committee on Interior and Insular Affairs stated point blank: “[t]he
decision to take Indian children from their natural homes is, in most cases, carried out without
due process of law.”56 One commentator has stated that the ICWA provides greater procedural
protections for parents, tribes, and Indian custodians than are provided to non-Indian parents.57
These protections are designed to ensure that parents, tribes, and Indian custodians are fully
informed and may participate in state court proceedings, and that federal courts may review state
court judgments.
Consent
In response to the conclusion by Congress that states were coercing waivers of parental rights and
obtaining consent from uninformed parents, Section 1913(a) of the ICWA requires that in cases of
voluntary placement in foster care or voluntary termination of parental rights, consent will not be
valid unless it is in writing, recorded before a judge, and accompanied by a certificate from the
judge that the “the terms and consequences of the consent were fully explained in detail and were
fully understood” by the consenting person.58 Section 1913(a) requires also that the court must
certify that the parent understood the explanation, either in English or as translated in a language
he or she did understand.59 Consent given within ten days after birth of a child is not valid.60
The ICWA also gives Indian parents opportunity to withdraw their consent. Parents of an Indian
child may withdraw their consent for termination of parental rights at any time before the final
decree of termination or adoption.61 Upon withdrawal of consent, the child must be returned to
the parent.62 Even after the final decree of termination or adoption has been entered, the parents
have two years to withdraw consent and petition the court to vacate the decree on the ground that
53 Atwood, supra note 2 at 228.
54 Id. at 228-229. See also Christine Metteer, Hard Cases Making Bad Law: The Need for Revision of the Indian Child
Welfare Act, 38 Santa Clara L. Rev. 419, 445 (1998) (Metteer) (citing In re Adoption of F.H., 851 P.2d 1361, 1365
(Alaska 1993) as an example of a court finding good cause for deviation from the ICWA’s placement preferences
partly based on avoiding uncertainty in favor of adoption).
55 Metteer, id. at 447 (citing In re Custody of S.E.G., 521 N.W.2d 357, 365 (Minnesota 1994) as rejecting the good
cause exception based simply on the child’s best interests and considering cultural needs in the placement).
56 H.Rept. 95-1386, supra note 3 at 11.
57 Atwood, supra note 2 at 174.
58 25 U.S.C. §1913(a).
59 Id.
60 Id.
61 25 U.S.C. §1913(b).
62 Id.
Congressional Research Service
7
The Indian Child Welfare Act (ICWA): A Legal Overview
his or her consent was obtained through fraud or duress.63 Upon a finding of fraud or duress, the
court shall vacate the decree and return the child to the parent.64 By providing that parents may
withdraw their consent and petition the court to vacate the adoption upon an allegation of fraud or
duress, the ICWA creates incentives to ensure that parents give their consent knowingly and
freely. However, these provisions also generate uncertainty about the security and finality of
adoptions of Indian children.
Based on all these procedural protections, one commentator has stated that Indian birth parents
are afforded more procedural protections than non-Indian birth parents in voluntary termination
proceedings.65
Notice
An important element of due process is notice of the action that the state is proposing to take.66
The House Report from the Committee on Interior and Insular Affairs pointed to the importance
of notice in the context of Indian children.
The conflict between Indian and non-Indian social systems sometimes operates to defeat due
process. The extended family provides an example. By sharing the responsibility of child rearing,
the extended family tends to strengthen the community’s commitment to the child. At the same
time, however, it diminishes the possibility that the nuclear family will be able to mobilize itself
quickly enough when an outside agency acts to assume custody. Because it is not unusual for
Indian children to spend considerable time away with other relatives, there is no immediate
realization of what is happening—possibly not until the opportunity for due process has slipped
away.67
Section 1912(a) provides that in an involuntary proceeding in state court, the party seeking
termination of parental rights must notify the parent and the child’s tribe by return receipt
registered mail.68 If the identity or location of the Indian child’s parent is not known, the party
seeking foster care placement or termination of parental rights must notify the Secretary of the
Interior (Secretary).69 The Secretary has 15 days in which to notify the parents.70 The court cannot
hold a proceeding for ten days after the parent or Indian custodian and tribe or the Secretary
received notice.71 State courts must grant up to 20 additional days upon request from the parent,
Indian custodian, or tribe before proceeding.72 Section 1912(a) is intended to provide meaningful
notice to both the parents and the tribes so that they may participate in the proceedings and, if
they wish, challenge the involuntary termination of parental rights or the removal of the child
from the family.
63 25 U.S.C. §1913(c).
64 Id.
65 Atwood, supra note 2 at 174.
66 Goldberg v. Kelly, 397 U.S. 254, 268 (1970).
67 H.Rept. 95-1386, supra note 3 at 11.
68 25 U.S.C. §1912(a).
69 Id.
70 Id.
71 Id.
72 Id.
Congressional Research Service
8
The Indian Child Welfare Act (ICWA): A Legal Overview
Right to Intervene
Section 1911(c) establishes the right of the Indian child’s Indian custodian or tribe to intervene in
any state court proceeding for termination of parental rights at any point in the proceeding.73 This
right of intervention applies in both involuntary and voluntary terminations. However, because
the ICWA requires that tribes get notice of involuntary proceedings only, tribes are more likely to
know about, and therefore intervene in, involuntary proceedings than in voluntary proceedings.
The House Report from the Committee on Interior and Insular Affairs noted that frequently
Indian parents leave their children with members of their extended families.74 Under 1911(c) such
a family member has a right to intervene, even though he or she has no recognized legal
relationship with the child. Section 1911(c) recognizes the importance of that relationship and
ensures that such a family member, as well as the child’s tribe, has the opportunity to be a party to
the termination proceedings. Granting Indian custodians and tribes the right to intervene as parties
provides another mechanism that increases the likelihood that Indian children will remain in
Indian communities and maintain ties to their tribes.
Right to Counsel
For indigent parents or indigent Indian custodians challenging the removal of a child or the
termination of parental rights, the ICWA provides the right to counsel. Section 1912(b) provides
that when a court determines indigence, the parent or Indian custodian has a right to a court-
appointed counsel in any placement or termination proceeding.75 A state court has discretion to
appoint counsel for the child if it determines it to be in the best interest of the child.76 If state law
does not provide for appointment of counsel, the state court must notify the Secretary of the
Interior who will pay reasonable fees and expenses upon certification from the presiding judge.77
Reports and Other Documents
One of the complaints voiced in the legislative history was that state court judges were making
decisions about Indian children based on evidence that the Indian parties could not see.78 Section
1912(c) seeks to remedy this by providing any party to a foster care placement or termination of
parental rights proceeding with the right to examine “all reports or other documents filed with the
courts upon which any decision with respect to such action may be based.”79 This provision seeks
to ensure that the court bases its decision on evidence in the record filed with the court that all
parties have had an opportunity to examine.
73 25 U.S.C. §1911 (c).
74 H.Rept. 95-1386, supra note 3 at 10, 11.
75 25 U.S.C. §1912(b).
76 Id.
77 Id.
78 H.Rept. 95-1386 22 (1978).
79 25 U.S.C. §1912(c).
Congressional Research Service
9
The Indian Child Welfare Act (ICWA): A Legal Overview
Remedial Services and Rehabilitation Programs
The ICWA requires that before a state court terminates parental rights, the state must take steps to
try to maintain the Indian family. Section 1912(d) requires the state to demonstrate that “active
efforts have been made to provide remedial services and rehabilitative programs designed to
prevent the breakup of the Indian family and that these efforts have proved unsuccessful” before
terminating parental rights.80 Such active efforts should extend to the extended family and the
tribe and may include “providing transportation, arranging appointments with providers, assisting
with childcare, and taking other rehabilitative measures, optimally in collaboration with the
child’s tribe.”81 This provision is intended to protect the integrity of Indian families and increases
the likelihood that a child will remain in the Indian community by requiring that states involve the
extended family and the tribe.
Federal Court Review
The ICWA provides for federal court review of state court decisions. Section 1914 states that a
child who is the subject of a state court proceeding, the parent or Indian custodian, or the child’s
tribe “may petition any court of competent jurisdiction” to invalidate an action based on a
violation of the ICWA’s jurisdictional provisions, procedural provisions, or consent provisions.82
A “court of competent jurisdiction” includes a federal court.83 Thus, federal courts may review
and invalidate state court decrees, upon a showing that the state court improperly exercised
jurisdiction, failed to allow the Indian custodian or tribe to intervene, failed to give full faith and
credit to a tribal court decree, failed to respect the procedural rights of the Indian custodian or
tribe, or failed to obtain informed and knowing consent from the parents. However, when tribes
or Indian parties have tried to use federal courts to invalidate state court decisions rendered in
violation of the ICWA, they have met with mixed results.84
Federal courts may review tribal court decrees, but only after the party seeking review has
exhausted his or her remedies in the tribal court.85 Thus, a party seeking review of a tribal court
decree must appeal the challenged decision through the tribal court system and obtain a decision
from the highest tribal court before challenging the decree in federal court.
80 25 U.S.C. §1912(d).
81 Atwood, supra note 2 at 176.
82 25 U.S.C. §1914 provides for invalidation based on violations of §§1911, 1912, or 1913. Section 1911 governs
jurisdiction of tribal and state courts and provides a right of intervention for Indian custodians and tribes and for full
faith and credit of tribal court decrees. Section 1912 provides procedural protections: notice; counsel; examination of
reports; remedial service and rehabilitation programs; and standards of proof. Section 1913 governs consent by parents
to voluntary termination of parental rights and foster care placement.
83 Doe v. Mann, 415 F.3d 1038, 1046-1047 (9th Cir. 2005).
84 See, e.g., Kiowa Tribe v. Lewis, 777 F.2d 587 (10th Cir. 1985) (declining review of state court judgment because
ICWA did not affect full faith and credit due state court decisions); Doe v. Mann, 415 F.3d 1038 (9th Cir. 2005), cert.
denied, 126 S.Ct. 1909 (2006) (finding section 1914 authorized federal court review of state court decision).
85 Boozer v. Wilder, 381 F.3d 931 (9th Cir. 2004).
Congressional Research Service
10
The Indian Child Welfare Act (ICWA): A Legal Overview
Foster Care Placement Under the ICWA
Foster care is the term applied to the temporary placement of a child with a licensed caregiver
when a child is removed, voluntarily or involuntarily, from his or her home and made a ward of
the state or tribe. The foster care giver has day-to-day responsibility for the child and the state or
tribe makes the legal decisions for the child.
Section 1912(e) establishes the standard of proof, the type of evidence, and the substantive
standard that state courts must apply in removing an Indian child from his or her home and
placing the child in foster care. Section 1912(e) provides that for involuntary proceedings, state
courts must find, based on “clear and convincing evidence,” including the testimony of qualified
expert witnesses, that “continued custody of the child by the parent or Indian custodian is likely
to result in serious emotional or physical damage to the child” before placing the child in foster
care.86 The “clear and convincing evidence” standard is higher than the “preponderance of the
evidence” standard necessary for due process and employed by most states in foster care
placement proceeding for non-Indian children.87 The BIA Guidelines provide that “[e]vidence that
only shows the existence of community or family poverty, crowded or inadequate housing,
alcohol abuse, or non-conforming social behavior does not constitute clear and convincing
evidence that continued custody is likely to result in serious emotional or physical harm to the
child.”88 Rather, in order to meet the standard, “the evidence must show the existence of
particular conditions in the home that are likely to result in serious emotional or physical damage
to the particular child.”89
Section 1915(b) provides that for foster care or preadoptive placement, a state court must place
the child “in reasonable proximity to his or her home,” “in the least restrictive setting which most
closely approximates a family, and in which his special needs, if any, may be met.”90 These
standards are similar to the standards applied under state law for foster placement of non-Indian
children. The ICWA, however, provides a hierarchy of preferences. Placement should be: with a
member of the child’s extended family; a foster home licensed, approved, or specified by the
child’s tribe; an Indian foster home licensed or approved by an authorized non-Indian licensing
authority; or, an institution for children approved by an Indian tribe or operated by an Indian
organization which has a program suitable to meet the child’s needs.91 Like the preferences for
adoption, these preferences make it more likely that Indian children will not be removed from an
Indian environment.
Parents and tribes enjoy the same procedural rights in foster care placement proceedings as they
have in parental rights termination proceedings.
86 25 U.S.C. §1912(e).
87 Atwood, supra note 2 at 177.
88 BIA Guidelines, supra note 12 at 67,593.
89 Id.
90 25 U.S.C. §1915(b).
91 Id.
Congressional Research Service
11
The Indian Child Welfare Act (ICWA): A Legal Overview
The ICWA’s Jurisdictional Scheme
By recognizing both exclusive and concurrent tribal court jurisdiction over custody proceedings
involving Indian children, the ICWA provides an important mechanism by which tribes may
participate in the placement of Indian children. The ICWA recognizes that tribal courts have
exclusive jurisdiction over child custody proceedings involving Indian children who are residing
on the reservation or who are wards of the tribal court, regardless of residency. It recognizes that
tribal courts have concurrent jurisdiction over child custody proceedings involving children who
reside off the reservation. To ensure that other jurisdictions respect tribal court orders, the ICWA
provides that “[t]he United States, every State, every territory or possession of the United States,
and every Indian tribe shall give full faith and credit to the public acts, records and judicial
proceedings of any Indian tribe applicable to Indian child custody proceedings to the same extent
that such entities give full faith and credit to the public acts, records and judicial proceedings of
any other entity.”92
Exclusive Jurisdiction
Before Congress passed the ICWA, the U.S. Supreme Court recognized that tribal courts have
exclusive jurisdiction over adoptions involving tribal members residing on the reservation. In
Fisher v. District Court of the Sixteenth Judicial District of Montana,93 members of the Northern
Cheyenne Tribe (Tribe) had gained custody of a member child through a tribal court proceeding.94
The members sought to adopt the child through a state court proceeding. The biological mother of
the child, who was also a member of the Tribe, moved to dismiss the state court proceeding on the
ground that the tribal court had exclusive jurisdiction over the proceeding.95 The Supreme Court
stated the test for whether the state court could exercise jurisdiction was at the least, “whether the
state action infringed on the right of the reservation Indians to make their own laws and be ruled
by them.”96 The Court concluded that the tribal court had exclusive jurisdiction owing to the
Tribe’s right to govern itself independent of state law.97 In response to the argument that the Tribe
could not divest the state of jurisdiction it exercised over tribal adoptions prior to organization of
the Tribe in 1935, the Court noted the tribal courts were established pursuant to the Indian
Reorganization Act. If the state courts in fact exercised jurisdiction over tribal adoptions, that
jurisdiction has been preempted by federal statute.98 Finally, the Court rejected the members’
assertion that depriving them of access to state courts constituted impermissible racial
discrimination, noting that the tribal court’s exclusivity derives from the “quasi-sovereign status”
of the Tribe under federal law.99 “Moreover, even if a jurisdictional holding occasionally results in
denying an Indian plaintiff a forum to which a non-Indian has access, such disparate treatment of
92 25 U.S.C. §1911(d).
93 Fisher v. District Court of the Sixteenth Judicial District of Montana, 424 U.S. 382 (1976).
94 Id. at 383.
95 Id. at 383-384.
96 Id. at 386 (internal quotations and citations omitted).
97 Id. at 387.
98 Id. at 390.
99 Id.
Congressional Research Service
12
The Indian Child Welfare Act (ICWA): A Legal Overview
the Indian is justified because it is intended to benefit the class of which he is a member by
furthering the congressional policy of Indian self-government.”100
The ICWA recognizes this exclusive jurisdiction over child custody proceedings involving Indian
children residing or domiciled on the reservation.101 It explicitly provides in section 1911(a) that
“[a]n Indian tribe shall have jurisdiction exclusive as to any State over any child custody
proceeding involving an Indian child who resides or is domiciled within the reservation of such
tribe.”102 Thus, a parent of a child residing or domiciled on the reservation cannot circumvent
tribal jurisdiction by going to state court.103 Section 1911(a) provides for exclusive tribal court
jurisdiction over Indian children who are wards of the tribal court, regardless of the child’s
residence or domicile.104
Section 1911(a) provides an exception for states in which a federal law, such as P.L. 280,105 vests
civil jurisdiction over the reservation in the state. Under Section 1918(a), tribes in P.L. 280 states
may reassume exclusive jurisdiction over child custody proceedings upon approval by the
Secretary of the Interior (Secretary) of a petition for reassumption.106 Reassumption, however, is
not necessary in order for tribes in P.L. 280 states to exercise concurrent inherent jurisdiction over
child custody proceedings107
For the ICWA, the child’s domicile or residence is determined, under federal law, by the domicile
or residence of the parents. In Mississippi Band of Choctaw v. Holyfield,108 the only Supreme
Court case to consider the ICWA, the Court considered whether the tribal court had exclusive
jurisdiction over the voluntary termination of parental rights and subsequent adoption of twin
Indian children whose biological parents resided on the reservation but who purposefully left the
reservation so that the children would not be born on the reservation, thereby avoiding the
ICWA’s reach. The Court held that the tribal court had exclusive jurisdiction over the
proceedings. The state supreme court had held that domicile or residence was a matter of state
law and that under state law, the children were never domiciled or residing on the reservation.
The Supreme Court reversed, holding that Congress intended that domicile or residence would be
determined by a uniform federal standard, and the standard looked to the residence of the parents
to determine the residence of the children. “Tribal jurisdiction under § 1911(a) was not meant to
be defeated by the actions of individual members of the tribe, for Congress was concerned not
solely about the interests of Indian children and families, but also about the impact on the tribes
100 Id. at 390-391.
101 25 U.S.C. §1911(a).
102 25 U.S.C. §1911(a).
103 Atwood, supra note 2 at 170.
104 25 U.S.C. §1911(a).
105 28 U.S.C. §1360. P.L. 280 “mandated the transfer of civil and criminal jurisdiction over ‘Indian country’ from the
federal government to the governments of five states [(California, Minnesota, Nebraska, Oregon, and Wisconsin)], and
permitted other states to assume such jurisdiction voluntarily. In 1958, Alaska was added to the list of mandatory
Public Law 280 jurisdictions.” Native Village of Venetie v. Alaska, 944 F.2d 548, 559-560 (9th Cir. 1989). P.L. 280,
therefore, vests jurisdiction over custody proceedings involving Indian children residing on a reservation in state court.
106 25 U.S.C. §1918(a).
107 Atwood, supra note 2 at 171. The Alaska state supreme court and the federal Court of Appeals for the Ninth Circuit
have held that Alaska Native village tribal courts have inherent original jurisdiction, concurrent with the state’s
jurisdiction, to initiate child custody proceedings for Alaska Native children residing off a reservation. State of Alaska
v. Native Village of Tanana, 249 P.3d 734 (Alaska 2011); John v. Baker, 982 P.2d 738 (Alaska 1999); Native Village of
Venetie, 944 F.2d at 561-562.
108 490 U.S. 30 (1989).
Congressional Research Service
13
The Indian Child Welfare Act (ICWA): A Legal Overview
themselves of the large number of Indian children adopted by non-Indians.”109 The Court noted,
“[t]he protection of this tribal interest [in Indian children] is at the core of ICWA, which
recognizes that the tribe has an interest in the child which is distinct from but on parity with the
interest of the parents.”110
Concurrent Jurisdiction
The ICWA ensures concurrent tribal-state jurisdiction by providing that in state child custody
proceedings involving Indian children residing off the reservation, state courts must transfer the
proceeding to tribal court upon petition of the Indian child’s parent, Indian custodian, or tribe,
unless either parent objects, the tribal court declines jurisdiction, or good cause is shown.111 The
Supreme Court said in Holyfield that when there is concurrent jurisdiction, tribal court
jurisdiction is presumed.112 The fact that either parent may object to transfer to tribal court means
that state courts frequently hear cases involving children of mixed heritage.113
The ICWA does not define good cause and the legislative history indicates that Congress left it
undefined intentionally so that state courts would have flexibility in making good cause
determinations.114 The BIA Guidelines identify the following circumstances as constituting good
cause: the child’s tribe lacks a tribal court; the petition is filed when the proceeding is at an
advanced stage and the petitioner did not file the petition promptly; an Indian child older than
twelve objects; presenting evidence in tribal courts would present an undue hardship on parties or
witnesses; or a child older than five, whose parents are unavailable, has had little or no contact
with the tribe or its members.115 Courts are divided on whether to consider the child’s best interest
in determining good cause.116
Proposed Amendments to the ICWA
Over the years, there have been many bills introduced in Congress to amend the ICWA.117 In
general, the amendments have been aimed at ensuring tribal notice and the opportunity for limited
tribal intervention in voluntary adoptions,118 restricting the time in which parents may revoke
109 Id. at 49.
110 Id. at 52 (internal quotations and citation omitted).
111 25 U.S.C. §1911(b).
112 Holyfield, 490 U.S. at 36.
113 Atwood, supra note 2 at 173; see cases cited supra note 24.
114 BIA Guidelines, supra note 12 at 67,584, citing S.Rept. 95-597, 95th Cong., 1st Sess. 17 (1977).
115 Id.
116 Atwood, supra note 2 at 173-174, citing In re Appeal in Maricopa County Juvenile Action No. JS-8287, 828 P.2d
1245 (Ariz. Ct. App. 1991)(court considered best interests of the child); In re Robert T., 246 Cal. Rptr 168 (Ct. App.
1988) (same); In re Alexandria Y., 53 Cal. Rptr2d 679 (Cal. App. 1996)(same); In re Adoption of F.H., 851 P.2d 1361
(Alaska 1993) (same). See, e.g., Shageluk IRA Council v. State of Alaska, (S.Ct. Alaska March 18, 2009) (affirming
lower court decision not to transfer case to tribal court because lower court did not consider best interests of the child);
In re M.A., 40 Cal. Rptr. 3d 439 (Ct. App. 2006) (court did not consider best interests of the child).
117 See, e.g., H.R. 4733, 107th Cong. (2002); S. 1213, 106th Cong. (1999); H.R. 1082, 105th Cong. (1997); S. 569, 105th
Cong. (1997); H.R. 3275, 104th Cong. (1996); H.R. 3828, 104th Cong. (1996); H.R. 1448, 104th Cong. (1995); S. 1962,
104th Cong. (1995); S. 764, 104th Cong. (1995).
118 H.R. 4733, 107th Cong. (2002), sec. 9, 10, 11; S. 1213, 106th Cong. (1999), sec. 6-8; H.R. 1082, 105th Cong. (1997),
(continued...)
Congressional Research Service
14
The Indian Child Welfare Act (ICWA): A Legal Overview
their consent to voluntary termination of their rights,119 and providing criminal penalties for
misrepresentation regarding an Indian child.120 In addition, many of the proposed amendments
have clarified when tribal courts have exclusive jurisdiction; extended exclusive jurisdiction to
tribes with reservations located in P.L. 280 states and to tribes without reservations, including
tribes in Oklahoma; and, made clear that tribes in Alaska have jurisdiction concurrent with state
courts.121 Only one bill has been introduced to limit the applicability of the ICWA.122
There were no bills introduced in the 112th Congress to amend the ICWA.
Conclusion
The ICWA has achieved success in reducing the rate at which Indian children are removed from
their homes and the rate at which Indian children are placed in non-Indian homes.123 Nonetheless,
Indian children are still removed from their homes and placed in foster care at a rate higher than
that for non-Indian children.124 In 2008, Congress passed the Fostering Connections to Success
and Increasing Adoptions Act,125 which made tribes eligible for direct funding for foster care and
adoption assistance under Title IV-E of the Social Security Act,126 the act under which states
receive federal funding for foster placement and adoption assistance. It is too early to know the
results of this access to increased funding, but it may improve the tribes’ ability to protect their
children in a way that also protects the tribes.
(...continued)
sec.6-8; S. 569, 105th Cong. (1997), sec. 6, 7, 8; H.R. 3828, 104th Cong. (1996), sec. 6, 7, 8; S. 1962, 104th Cong.
(1995), sec. 6, 7, 8.
119 H.R. 4733, 107th Cong. (2002), sec. 8; S. 1213, 106th Cong. (1999), sec. 5; H.R. 1082, 105th Cong. (1997), sec. 5; S.
569, 105th Cong. (1997), sec. 5; H.R. 3828, 104th Cong. (1996), sec 5; S. 1962, 104th Cong. (1995), sec. 5.
120 H.R. 4733, 107th Cong. (2002), sec. 18; S. 1213, 106th Cong. (1999), sec. 10; H.R. 1082, 105th Cong. (1997), sec. 9;
S. 569, 105th Cong. (1997), sec. 10; H.R. 3828, 104th Cong. (1996), sec. 9; S. 1962, 104th Cong. (1995), sec. 9.
121 H.R. 4733, 107th Cong. (2002), sec. 2(5),(6),(7); H.R. 1082, 105th Cong. (1997), sec. 2; H.R. 3828, 104th Cong.
(1996), sec. 1; S. 1962, 104th Cong. (1995), sec. 2.
122 H.R. 3275, 104th Cong. (1996).
123 Atwood, supra note 2 at 193; Ann E. MacEachron, Nora S. Gustavsson, Suzanne Cross, Allison Lewis, The
Effectiveness of the Indian Child Welfare Act of 1978, 70 Social Service Review 451 (1996). MacEachron et al. report
that between 1975 and 1986, there was a 93 percent drop in adoption rates of Indian children and a 31 percent decrease
in the placement of Indian children in foster care. Id. at 457. They also report that the discrepancy between foster care
placement rates for Indians and non-Indians was smaller in 1986 than it was in 1975. Id. at 458.
124 Atwood, supra note 2 at 194.
125 P.L. 110-351, 110th Cong., 2d Sess. (2008).
126 42 U.S.C. §§601, 670-679a.
Congressional Research Service
15
The Indian Child Welfare Act (ICWA): A Legal Overview
Author Contact Information
Jane M. Smith
Legislative Attorney
jmsmith@crs.loc.gov, 7-7202
Congressional Research Service
16