Why Congress acted
By the 1970s, tribal leaders, Native parents and some child welfare professionals were telling Congress that Native children were being removed from their families at far higher rates than other children. Congressional hearings in the middle of that decade found that a large share of Native children in many states had been separated from their families and that most were placed with non-Native foster or adoptive families or in institutions. Several things lay behind this. Caseworkers often judged Native households by standards that ignored extended family care. Poverty was frequently treated as neglect. State courts rarely consulted the tribes concerned.
This followed earlier policies that had separated children from communities, including the federal boarding school system and a federal-private adoption project of the late 1950s and 1960s that placed Native children with non-Native families. Many Native communities saw all of these as part of one long pattern. The Indian Child Welfare Act, passed by Congress in 1978, was written in that setting.
What the law does
ICWA applies to certain child custody cases involving an “Indian child,” meaning a child who is a member of a federally recognized tribe, or who is eligible for membership and is the child of a member. Each tribe decides its own membership, a point tied to questions of Apache tribal enrollment. Without going into legal detail, the law does several main things:
- It recognizes tribal courts’ authority over custody cases for children who live on the reservation, and it gives tribes the chance to ask that other cases be moved to tribal court in many situations.
- It requires that tribes receive notice when a state court is handling a case involving a child who may be covered, so that a tribe can take part.
- It sets higher standards before a child can be removed from a family, including a requirement of “active efforts” to keep the family together.
- It sets an order of preference for placement, which generally favors the child’s extended family, then other members of the child’s tribe, then other Native families.
The law does not decide any case on its own. Judges decide individual cases, and the facts of each case matter, including the child’s safety. ICWA aims to ensure that the child’s family and nation are involved in decisions.
How Apache nations use it
Each Apache nation uses ICWA in its own way, depending on its government, courts and staff. Nations commonly have a social services or child welfare office, a tribal court or a designated person who receives notices from state courts, and relationships with state agencies. Where a child’s case comes from a state court, the tribe may review the child’s family tree, identify relatives who could care for the child, and weigh in on placement.
The approach fits traditional values, since in many Apache communities relatives other than parents have long had real responsibility for children. The article on Apache adoption and kinship describes how extended family networks have worked. The idea that a child belongs to a family and a community, not only to two parents, is part of why many nations regard the law as a tool to protect cultural continuity as well as children themselves. Communities also differ, and practices vary between the Western Apache nations, the Mescalero and Jicarilla nations in New Mexico and the Apache nations in Oklahoma.
The law also matters for families outside the reservations. Many Apache people live in cities, and a child living off the reservation may still be covered if the child is a member or eligible for membership. In those cases a nation may need to work through a state court and an unfamiliar agency, often from a distance.
Challenges and the courts
Since 1978 the law has been challenged in various ways, and implementation has been uneven across the states. Questions have been raised about how consistently courts apply the notice and placement rules, and about balancing a child’s ties to a tribe against ties to a foster family. In 2023, in a case called Haaland v. Brackeen, the US Supreme Court rejected constitutional challenges to the law and left it in place. Debate on specific provisions continues, and later developments are best checked in current sources.
ICWA also sits among other pieces of federal law that recognize the special status of tribes. The ability of nations to run courts and child welfare services rests on a broader recognition of Apache tribal sovereignty, shaped by federal statutes and funding that vary over time.
Where to look for current information
This article is a general explanation, not legal advice. Anyone involved in a child custody case should consult an attorney and the relevant tribal office. The websites of the Apache nations, and of the federal agencies that support child welfare programs in Native communities, provide current contacts and procedures.