Why Congress Passed the Law
The Indian Child Welfare Act of 1978, often shortened to ICWA, is a federal law about how child custody cases involving Native children are handled. To understand it, it helps to start with what came before. This article is a general history only. It is not legal advice, and anyone involved in a real case should speak to a qualified attorney or to the child welfare office of the relevant nation.
For decades before 1978, Native children were removed from their families in large numbers. The earlier boarding school system, run by the government and by churches, took children far from home with the aim of forced assimilation, and its harm is discussed in the material on Apache boarding school history. By the middle of the twentieth century a second pattern had emerged in which state child welfare agencies and private adoption agencies placed Native children in foster care or adoption with non-Native families. A federal-supported effort known as the Indian Adoption Project, which ran in the late 1950s and 1960s, placed Native children with non-Native families, and other placements happened through state systems.
Reasons for removal were often tied to poverty, poor housing or cultural misunderstanding. Social workers sometimes judged families by standards that did not fit extended-family child rearing, in which aunts, grandparents and other relatives often took part in raising children. Many Native communities, in Apache country and elsewhere, relied heavily on kin networks. A child living with relatives might be treated as neglected under outside standards.
Hearings and Findings
In the mid-1970s, Congress held hearings in which tribal leaders, families and advocates described the situation. A frequently cited survey by the Association on American Indian Affairs found that a large share of Native children were being separated from their families and that most of those children were placed outside Native homes. Exact percentages differ by state and source, so this article does not give a single figure. The congressional findings that went with the act state that removal threatened the future of tribes and that states had often failed to recognize Native cultural and social standards.
What the Act Generally Provides
In general terms, the act:
- Gives tribal courts jurisdiction over child custody proceedings involving a child who lives on a reservation or is a ward of a tribal court. For other children who are members or eligible for membership, a state court may be asked to transfer the case to a tribal court in many circumstances.
- Requires notice to the tribe and parents in covered state-court cases, and allows the tribe to take part.
- Sets higher standards before a covered child may be removed from a parent, including efforts to keep the family together.
- Sets placement preferences, generally favoring placement with extended family, then other members of the child’s tribe, then other Native families, unless a court finds good cause to depart from the order.
The act applies to children who are members of a federally recognized tribe, or who are eligible for membership and are the child of a member. Tribal enrollment rules are set by each nation, so who counts as eligible depends on that nation’s own law.
Courts and Later Disputes
ICWA has been tested in court many times. In Mississippi Band of Choctaw Indians v. Holyfield (1989), the Supreme Court addressed the meaning of domicile under the act and supported tribal jurisdiction. In Adoptive Couple v. Baby Girl (2013), the Court interpreted parts of the act narrowly in a case involving a non-custodial father. In Haaland v. Brackeen (2023), the Court rejected constitutional challenges and left the law in place. Those rulings addressed specific questions, so they should not be read as a full account of how the law works today.
Tribal Courts and Child Welfare Programs
The act encourages tribes to run their own child and family services, and many Native nations maintain tribal courts, social services and ICWA offices. Apache nations in Arizona, New Mexico and Oklahoma have their own courts and procedures, and some have agreements with states about how cases are handled. What each nation provides changes over time, so readers should check the nation’s official website or court office for current information. The work of tribal courts also relates to broader questions about Apache tribal sovereignty, since decisions about children are among the most basic decisions any government makes.
Why It Matters in Apache Communities
For Apache families, the law connects to a larger history of loss. Earlier federal policy sought to weaken language, ceremony and family ties through schooling and other means, and child removal was part of the same pattern. Kinship is central in many Apache societies, as the articles on Apache family and kinship describe, and ICWA recognizes in law that keeping children connected to relatives and to their nation serves the child and the community. Apache nations are not identical in their views or practices, and this site does not speak for any of them.
Questions about ICWA continue in courts and legislatures. Anyone wanting current information on how it applies in a particular situation should consult the nation’s own legal and child welfare offices and a qualified lawyer.