The Indian Child Welfare Act

Abstract

The Indian Child Welfare Act (1978) was created in response to the finding that across tribes, children entering into legal custodial relationships, such as adoption, pre-adoption, and foster care, were preferentially and disproportionally placed with non-tribal families even when extended family members were available and capable. According to Jacobs (2013), 25%-35% of children were ‘adopted out’ of the tribes in an effort to ‘detribalize’ Native nations. Investigations discovered that a lack of due process, including failing to give notice of hearings, denial of witness opportunities and curtailed times for testimony had been systematically enacted in some child welfare agencies (Jacobs, 2013). The Act intended to keep Native children in-tribe wherever possible, to maintain cultural coherence and to combat the attrition of numbers of enrolled tribal members. There were those who saw the Act as a social danger. Even after the implementation of the Act, some agencies resist compliance, continuing to evade engaging with the tribes even when legally required. A combination of racism and a lack of historical understanding of tribal history has led to ambivalence about implementing the act, and continued misapplication of its requirements (Limb & Brown, 2008). In the end, however, the Act succeeded in creating a space for a new dialogue between tribes and ‘outside’ services, however, complicated and disagreeable this dialogue has been. Adoption agencies, social services, and tribes have had to face uncomfortable self-scrutiny toward recognition and respect for family diversity and tribal culture.