What is the Indian Child Welfare Act?
The Indian Child Welfare Act (ICWA) is a federal law enacted in 1978 that seeks to protect the best interests of Native American children, families, and tribes. It applies to state child welfare proceedings involving an Indian child—defined as any unmarried person under the age of 18 who is either a tribal member or is eligible to become a tribal member. Under ICWA, state courts must follow certain procedures to ensure that Indian children remain connected to their Native American heritage. ICWA requires that, whenever possible, custody of the Indian child must be granted to a family member or another member of the same Indian tribe. If the tribe and family are unable to take care of the child, the state must then make “active efforts” to place the child with another member of the Indian tribe. If that is not possible, then the state must seek placement of the child in a foster home or adoptive home that meets ICWA’s standards for keeping the child connected to their Native American heritage. Families and tribes are also given the opportunity to intervene in state court proceedings involving their Indian children. The law also provides for the transfer of proceedings from state court to tribal court. Finally, ICWA requires that state and tribal courts keep certain records to ensure that the law’s provisions are being followed. In sum, the Indian Child Welfare Act is a federal law that seeks to protect the rights of Native American children and families, while keeping them connected to their heritage.
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