The ICWA, the Best Interests of
Indian Children
Recognizing historical necessity, practical application and future implications of
the ICWA
Shannon Smith
Executive Director ICWA Law Center
1730 Clifton Place, Suite 104
Minneapolis, MN 55403
Bringing People Together . .
. Voices to be Heard
 Family
 Tribe
 Community
 State and County – Local Social Service
Agencies
 Guardian ad litems
 Attorneys  Advocates
Speaking the same language . . .
Best interests
Family
Permanency
Historical Necessity
 To understand ICWA, context is needed
 History directly impacts the stories
 Too often, history is assumed to be true because
it is taught in schools or portrayed by the media
does not tell the whole story or is inaccurate
History lessons
 1492 – Indian population about 10 – 12 million
 By 1496, the native population was cut in half. In
less than 50 years after Columbus came in
contact with the island, the entire native
population was gone.
 By 1900: about 250,000
 By 2009: a little over 3 million
Federal Indian Policies: Dealing
with the “Indian Problem”
“kill the Indian save the child”
Reservation Movement, 1850-1887
 1849 Discovery of Gold
 1851 and 1871 Indian Appropriation Act
authorized the creation of Reservations and
ended treaties
 Indian Wars
 Dakota War
 Black Hawk War
 Sioux Wars
 Battle of the Rosebud
 Battle of the Little Bighorn
 Wounded Knee
1928-1945 Indian Reorganization Act
 Meriam Report – surveyed quality of life of Indian
people in 26 states, considered: general policy
for Indian affairs, health, education, family and
community live, the legal aspects of the “Indian
Problem” and missionary activities among the
Indians
 Conclusion: Federal Indian Policy was an
Absolute Failure and Harmful to Indian People
1945 – 1961 Termination Policy
-Indian Reorganization Act repelled and 109 tribes were
terminated
-1952 – Urban Indian Relocation Program, Indians
encourage to leave the reservations for 9 selected
urban areas – promises of jobs, housing and financial
assistance
-Between 1950 and 1980, over 750,000 have moved to
Urban areas from reservations
The Boarding School Experience
•Attendance was mandatory
• Children as young as 5 removed by armed police
• Children were place hundreds if not thousands of
miles away
• Families were faced with loss of government food
rations if they hid their children
• Families had no other option for school
• Children were often not able to go home during the
summers as they were provided to local farmers for
laborers
Taught to become “Good Indians”
•Severely punished for practicing their language, culture
and religion
•Hair was cut and children were forced to wear uniforms
•“educated” to become laborers and forced to work long
hours
•Children experienced physical, emotional and sexual
abuse on a daily basis
Meriam Report on the condition of
the schools
“The survey staff finds itself obliged to say
frankly and unequivocally that the
provisions for the care of the Indian
children in boarding schools are grossly
inadequate”
Condition of schools . . . .
 Overcrowded, underfunded, understaffed and
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corrupt
Children were malnourished, overworked, harshly
punished and poorly educated
Routine physical, emotional and sexual abuse
Disease rampant resulting in disproportionate
high number of deaths
10, 11 and 12 year olds spending large amounts
of time in heavy industrial labor
1973, 60,000 American Indian children estimated
to have been enrolled in Indian Board Schools
The Indian Adoption Project
In 1958, the Child Welfare League of
America partnered with the BIA under a 9
year federal contract for the purposes of
placing Indian children with “white”
families
Indian Adoption Project
ended in 1967
In 2001, CWLA apologized
for the “hurtful, biased and
disgraceful course of action”
they took to encourage and
support the “rescuing” of
Indian children from their
culture and their families
The Indian Child Welfare Act 1978
Practical Application
ICWA – Mandates and Spirit
• Recognizes the fundamental
connection between Indian
children, their families and their
tribes
Important ICWA Resources
 The ICWA, 25 U.S.C. 1901 et seq. (1978)
 The Minnesota Indian Family Preservation Act
 The BIA Guidelines
 The Minnesota Rules of Juvenile Protection
Procedure
 The Tribal State Agreement as amended in 2007
 The Department of Human Services Social
Service Manual
 ICWA Active Efforts Best Practice
ICWA 1901
 Congress has plenary power over Indian affairs
 Congress has assumed the responsibility for
protection and preservation of Indian tribes and
their resources
 There is no resource more vital to the continued
existence and integrity of Indian tribes than their
children
 There is an alarmingly high percentage of Indian
families broken up
 States have often failed to recognize the essential
tribal relations of Indian people and the cultural
and social standards prevailing in Indian
ICWA 1902
It is the policy of this Nation 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 and the placement of such
children in foster or adoptive homes
which will reflect the unique values of
ICWA 1903
When ICWA Applies:
(1) Indian Child
 A member of a Federally Recognized Tribe
 Eligible for membership in a Federally Recognized Tribe
 Tribe’s determination conclusive
(2) Child Custody Proceedings
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Foster care placement
Termination of parental rights
Preadoptive placement
Adoptive placement
Third party custody proceedings
 Does NOT apply in divorce proceedings or delinquency
proceedings
ICWA 1911
“Tribes are separate, distinct nations, whose
sovereignty predates the establishment of the
United States”
The heart of the matter –
 Indian tribe jurisdiction over Indian child custody
proceedings
(a) Exclusive jurisdiction
(b) Transfer of proceedings
(c) State court proceedings
ICWA 1912
 (a) Notice – to parent, Indian custodian and
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Indian child’s tribe
(b) Appointment of counsel – if indigent than
parent or Indian custodian; and for child if in best
interests
(c) Examination of reports
(d) Remedial services and rehabilitative
programs; preventative measures (Active Efforts)
(e) Foster care placement orders, evidence,
determination of damages to child – Qualified
Expert Witness
(f) Parental rights termination orders; evidence;
determination of damage to child – Qualified
Expert Witness
Active Efforts
Guidance from Indian child’s tribe on family
structure
Determine barriers
Providing services including financial
assistance, food, housing, health care and
transportation
Visitation
Services to extended family members to
allow them to be considered for placement if
ICWA 1913
Voluntary Placement
 Foster care placement of termination of parental
rights
 Before a Judge
 Executed in writing
 Judge’s certificate
 Not prior to or within 10 days of birth
ICWA 1914
Petition to Invalidate
 Any Indian child who is the subject of any action
for foster placement or termination of parental
rights under State law, any parent or Indian
custodian from whose custody such child was
removed and the Indian child’s tribe may petition
any court of competent jurisdiction to invalidate
such action upon a showing that action violated
any provisions of 1911, 1912, and 1913
ICWA 1915
“placing Indian children in homes
that reflect the unique values of
Indian culture”
(a) Adoptive placements
 In absence of good cause to the
contrary
 Member of the child’s extended
family
 Other members of the Indian
child’s tribe
 Other Indian families
(b) Foster care or pre -adoptive placements
 Least restrictive setting which most approximates
a family and in which his special needs, if any,
may be met, with reasonable proximity to his or
her home – taking into account special needs
 Preference
 Member of the Indian child’s extended family
 A foster home licensed, approved or specified by
the Indian child’s tribe
 An Indian foster home licenses or approved by an
authorized non-Indian licensing authority
 An institution for children approved by an Indian
tribe or operated by an Indian organization
ICWA 1916
Return or the child
 Petition best interests
of child
 Whenever a final
decree of adoption is
vacated or adoptive
parents voluntarily
agree to TPR, parent
or Indian custodian
may petition for return
 Removal from foster care
home, placement
procedures
• ICWA procedures shall
apply
• Except in cases where an
Indian child is being
returned to parent or
Indian custodian
ICWA 1917
Tribal affiliation information
 An Indian person who is 18 and who is subject of
an adoptive placement . . .upon application shall
be informed of tribal affiliation, if any, of the
biological parents and provide other information
to protect tribal relationship
ICWA 1918
Reassumptioon of jurisdiction over
child custody proceedings
ICWA 1919
Agreements between States and Indian
tribes
February 2007 Minnesota Tribal / State Agreement
“The purpose of this Agreement is to protect the long
term best interests, ad defined by the tribes of Indian
child and their families, by maintaining the integrity of
the Tribal family, extended family and the child’s Tribal
relationship. The best interests of Indian children are
inherently tied to the concept of belonging. Belonging
can only be realized for Indian children by recognition
of the values and ways of life of the child’s Tribe and
support of the strengths inherent in the social and
cultural standards of tribal family systems. Family
The Tribal / State Agreement
The foundation of this Agreement is the
acknowledgement that Indian people
understand that their children are the
future of their tribes and vital to their very
existence. An Indian child is sacred and
close to the creator.
1921
ICWA 1921
Higher State or Federal Standard Applicable
to Protect Rights of Parent or Indian
ICWA is only the beginning –
ICWA does not dictate an answer
rather gives a framework to reach
an anwer
ICWA 1922
Emergency removal or placement of
Indian child
 Nothing in ICWA shall be construed to prevent the
emergency removal of an Indian child who is a
resident of or is domiciled on a reservation, but
temporarily located off the reservation, from his
parent or Indian custodian or the emergency
placement of such child in a foster home or
institution, under applicable State law, in order to
prevent imminent physical harm or damage to the
child . . .
Conclusion
 “The best interests of Indian children are
inherently tied to the concept of belonging.
Belonging can only be realized for Indian children
by recognition of the values and ways of live of
the child’s Tribe and support of the strengths
inherent in the social and cultural standards of
tribal family systems . . .Indian people understand
that their children are the future of their tribes and
vital to their very existence. An Indian child is
sacred and close to the creator.” Minnesota
Tribal / State Indian Child Welfare Agreement as
amended in 2007
ICWA –Future Implications
•Disparities
•Consider South Dakota – Legal Challenges
•Supreme Court – Adoptive Couple v. Baby Girl, a
minor child under the age of fourteen years, Birth
Father and the Cherokee Nation