Family, Community, and Culture: Understanding the Indian Child Welfare Act

The Indian Child Welfare Act of 1978 (ICWA) was passed by Congress to address the misuse of the states' child protection power. Before the passage of the ICWA, it is estimated that 25-35% of all Indian children (a category which includes both American Indians and Alaska Natives) had been placed outside of their homes at some point in time. Many placements occurred despite little evidence of actual abuse and neglect, and 90% of those placements were with non-Indian families. By regulating the process by which state systems deal with Indian children and families at risk and with the adoption of Indian children, ICWA's intent was to protect Indian children and give them the opportunity to stay with parents whenever possible and to remain connected with their families, communities, and cultures. The ICWA applies to Indian children in child custody proceedings in state courts. It adds federal standards to state child welfare law but does not replace state law except where state law is inconsistent with the ICWA.

In this course, Jack Trope, co-author of the ABA Handbook on the Indian Child Welfare Act, will provide the history and philosophical framework which serve as the basis for the ICWA and its requirements, discuss key provisions in both the law and implementing regulations, work through some hypothetical scenarios, and inform participants about some pending legal challenges to the law.

Learning Objectives:

1. Appreciate the history leading up to the Indian Child Welfare Act and the reasons for its enactment
2. Discuss the concepts and philosophical framework which undergird the ICWA and why the law is structured as it is, including the reasons why many child welfare organizations refer to the ICWA as the "gold standard" for child welfare 
3. Review the specific requirements of the law and regulations, including provisions dealing with inquiry and notice, jurisdiction, active efforts, standards for foster care placements and termination of parental rights, and placement placements
4. Recognize the important role of tribes in the ICWA, including the specific tribal rights specified in the law, and the importance of effective collaboration with tribes in ICWA cases
5. Analyze pending constitutional challenges to the ICWA which may have an impact on ICWA cases