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NACC Policy Statement: Indian Child Welfare Act

Thursday August 24, 2023

Adopted by NACC’s Board of Directors on August 12, 2023

The National Association of Counsel for Children strongly supports the rights and sovereignty of Indigenous children, parents, and tribes – including through the Indian Child Welfare Act (ICWA), and its state counterparts.

Background

In the 1970s, Congress properly exercised its legislative authority to confront and redress harms against Indigenous families. These injustices were long-standing and deeply rooted, originating in America’s history of colonialism and genocide and continuing into the modern era, when boarding schools and later foster care systems were used as mechanisms for family separation and forced cultural assimilation.

During a four-year study period prior to ICWA’s enactment, federal lawmakers faced a “crisis of national proportions.”[1] Congressional testimony demonstrated the “systematic, automatic, and across-the-board removal of Indian children from Indian families and into non-Indian families and communities.” When Congress passed ICWA in 1978, data revealed that states collectively removed a startling one in three Native American children from their homes and placed them in foster care.[2] Congress passed the law to increase scrutiny of state and county child protection agency decisions and the courts that oversee them. Through ICWA, “Congress reaffirmed the importance of children to ‘the continued existence and integrity of Indian tribes’ and the need to protect Native families from coercive intervention and placement outside of their community and tribe.”[3]

ICWA Ensures Better Agency and Court Decisions

Today, disproportionality and disparity persist, with Indigenous children represented in foster care at a rate 2.7 times their representation in the general population.[4] Attorneys for children, parents, agencies, and tribes, as well as judicial officers, depend on ICWA to ensure government agencies do not unnecessarily remove Indigenous children from their homes, families, and tribes.  When state and county agencies do separate children and families, ICWA holds them responsible for making active efforts toward reunification and prioritizes placements with kin or tribes.  ICWA alone may not resolve the deep inequities that exist for Indigenous families experiencing the child protection system. However, when accompanied by resources, training, culturally humble approaches, and other best practices, ICWA helps address inequities and repair harm.

As a national membership association dedicated to high-quality legal representation in child protection court proceedings, NACC knows that ICWA is an important advocacy tool for child, parent, agency, and tribal counsel. Like other federal laws that shape state-level proceedings,[5] ICWA provides the legal underpinnings to ensure due process, hold the state accountable, and promote adherence to best practices—such as family preservation and culturally responsive placement.[6]  Similarly, judicial officers who oversee these matters benefit from the law’s application: “ICWA assists state courts by ensuring that they have the information and guidance needed to make sound, individualized determinations in Indian children’s best interests.”[7]

NACC’s Commitments

NACC’s vision is that every child, parent, and family is well-supported in their community and has equitable access to justice through culturally responsive, client-centered legal representation. That is why we filed an amicus brief urging the U.S. Supreme Court to uphold ICWA and celebrate the Court’s recent decision in the matter of Haaland v. Brackeen. NACC will continue to support ICWA – by including it in our trainings and certification exam, participating in federal policy work that supports tribes, and urging lawmakers to protect enact mirroring legislation at the state level. We will also continue our work to elevate ICWA’s fundamental principles – such as family integrity, the right to kin, and the importance of cultural connections – for all children.


[1] Gupta-Kagan, J., Adams, L., Carter, M., Pisani-Jacques, K., Sankaran, V. (Eds.). (2022), Child Welfare Law and Practice: Representing Children, Parents, and Agencies in Neglect, Abuse, and Dependency Cases (4th Edition) (p. 167). National Association of Counsel for Children.  

[2] 25 U.S.C. §§ 1901(4)–(5); see also Holyfield, 490 U.S. at 32–33.

[3] Indian Child Welfare Act of 1978, 25 U.S.C. §§ 1901-63.

[4] Gupta-Kagan, J., Adams, L., Carter, M., Pisani-Jacques, K., Sankaran, V. (Eds.). (2022), Child Welfare Law and Practice: Representing Children, Parents, and Agencies in Neglect, Abuse, and Dependency Cases (4th Edition) (p. 164). National Association of Counsel for Children.

[5] See, e.g., Servicemembers Civil Relief Act (50 USC § 3911), Hague Convention.

[6] Child Welfare Information Gateway (2021). Cultural Responsiveness: Out-of-Home Care. ChildWelfare.gov. https://www.childwelfare.gov/topics/systemwide/cultural/outofhome/

[7] National Association of Counsel for Children, Public Counsel. (2022). Brief of National Association of Counsel for Children and Thirty Other Children’s Rights Organizations as Amici Curiae in Support of Federal and Tribal Defendants. Public Counsel. https://publiccounsel.org/wp-content/uploads/2022/08/NACC-Amicus-Br.-filed-8.18.22.pdf

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