What is the Indian Child Welfare Act?
The Indian Child Welfare Act otherwise known as the ICWA was a federal law passed in 1978 to combat years of prejudice against Native Americans. The intent of the law was to stop massive numbers of Native American children from being removed from their homes and sent to Christian boarding schools and to live with white families. The federal court wanted to help reduce prejudiced attitudes and allow these children to maintain their culture. In doing this, the ICWA gave the children’s tribes the ability to help decide on the best options for the child. Thus, giving the tribes some authority to place children in homes with guardians who were part of the Native American community. The ICWA’s purpose in 1978 and now is to require law services to make an active effort to stop the removal of Indian children from their homes, and thus, their cultures. It was created as a response to years of prejudice and unfair cultural involvement by white people. By allowing tribes some say in the adoption and foster care decisions, the ICWA aimed to give the Indian community the opportunity to place children with people who understood their culture.
Who does the ICWA apply to?
The ICWA applies solely to a child that is defined by law as an “Indian child.” This means that the child must be a registered member of a federally recognized Indian tribe. In order to be considered an eligible member of a tribe, the child must be a biological child of a member of a tribe. In addition, the child must also be under eighteen and unmarried.
The Great ICWA Debate
While the ICWA has good intentions, in recent years, it has been met with some controversy. Some have criticized the law saying that it is discriminatory because it is based on race. Opponents of the ICWA bill claim that it is unconstitutional because it denies prospective parents the ability to adapt based solely on the fact that they are not Native American. Many foster parents argue that while it is important to remember your culture, many of these children form bonds with the families that they are placed with. This poses an important ethical question, is it more important for the child to be placed with a family who identifies with their cultural heritage, or is it more beneficial for the physical, mental, and emotional well-being of the child to remain with the family they were originally placed with, especially if strong attachments have already been made? While there are no easy answers, this debate elicits an emotional reaction from both sides, as both pro-ICWA and anti-ICWA advocates want what is best for the child.
What does the Debate Mean For Adoption?
Earlier this year, a Texas couple challenged the court for custody of their foster son. In a surprising turn of events, they were able to overturn the ICWA law and gained custody of their child. As of now, they are trying to also adopt his sister because they feel it would be best for the children to be raised together. Regardless of your side on the debate, this event has revolutionary effects. Many people wonder about the future of this law and if the court will continue to uphold the values of the Native American community and help maintain their cultures by placing children in homes where people share their cultural experiences. Others wonder if this law is inhibiting these children from being placed in loving homes because their prospective parents are not part of this community. Regardless, this case has shown that the future of the ICWA is in question and that this could have a great impact on the adoption process for Native American children.
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Julianna McKenna is a college student at Saint Mary’s College in Notre Dame, Indiana double majoring in English Writing and Psychology. She is passionate about adoption and foster care and is considering a career in adoption law or counseling. In January 2019, Julianna became an intern for Adoption Choices of Kansas, Inc. She is incredibly dedicated to promoting children’s rights and is excited to research and advocate for children.
Deutch, G. (2019, February 23). A court battle over a Dallas toddler could decide the future of Native American law. Retrieved June 11, 2019, from https://www.theatlantic.com/family/archive/2019/02/indian-child-welfare-acts-uncertain-future/582628.
Hoffman, J. (2019, June 05). Who can adopt a native American child? A Texas couple vs. 573 tribes. Retrieved June 11, 2019, from https://www.nytimes.com/2019/06/05/health/navajo-children-custody-fight.html
Understanding ICWA-Indian Child Welfare Act. (2019). Retrieved June 11, 2019, from https://consideringadoption.com/adopting/legal-process-of-adoption/understanding-icwa-indian-child-welfare-act.
What is the Indian child welfare act. (2019). NICWA. Retrieved June 11, 2019, from https://www.nicwa.org/families-services-providers/