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Indian Child Welfare Act: The Need for a Separate Law

NCJ Number
Compleat Lawyer Volume: 12 Issue: 4 Dated: (Fall 1995) Pages: 18-23
B J Jones
Date Published
6 pages
This article discusses the need for and the provisions of the Indian Child Welfare Act (ICWA), which was adopted by the U.S. Congress in 1978.
A look at history reveals why Congress determined that a special law was needed to protect the rights of Indian children and their parents. Before 1978 as many as 25 to 35 percent of the Indian children in certain States were removed from their homes and placed in non-Indian homes by State courts, welfare agencies, and private adoption agencies. It was not only the high number of children being removed from their homes, but also the fact that 85 to 90 percent of them were being placed with non-Indians that caught the attention of Congress. Congress was actively promoting the continued viability of Indian nations as separate sovereigns and cultures at that time. By enacting the substantive placement preferences in ICWA -- which require that Indian children, once removed, be placed in homes that reflect their unique traditional values -- Congress was acknowledging that no nation or culture can flourish if its youngest members are removed from institutions of cultural influence. The ICWA applies to four types of Indian child custody proceedings: foster care placements, termination of certain parental rights, preadoption placements, and adoption placements. At the very minimum, the existence of the ICWA has brought attention to the unique needs of Indian children and provided State agencies and judges with a valuable, cross-cultural educational tool.