Indian Child Welfare Act (ICWA)
With a strong understanding of the Indian Child Welfare Act (ICWA), tribal leaders and child welfare professionals can help ensure compliance, protect their communities, and protect tribal sovereignty.
Protect your children. Know your rights.
The Indian Child Welfare Act (ICWA) is a federal law (25 U.S.C. §§ 1901–1963) passed in 1978 in response to the devastating number of American Indian and Alaska Native children being removed from their families and placed in non-Native homes. ICWA requires states and courts to protect the best interest of American Indian and Alaska Native children by keeping their connections to family, community, and culture intact. Compliance is mandatory, yet many state and court systems struggle to effectively meet these requirements.
Labeled the “gold standard” in child welfare policy and practice by a coalition of 18 national child advocacy organizations, ICWA recognizes and protects the right of all Indian children to be loved, safe, and connected to their family, culture, and tribal nations.
ICWA serves the best interest of Indian children by requiring state courts and agencies to:
- Provide active efforts to both prevent removal and to reunify
- Follow placement preferences
- Obtain testimony from a Qualified Indian Expert Witness
In 2016, the Bureau of Indian Affairs issued 25 C.F.R. Part 23, Indian Child Welfare Act Proceedings, Final Rule and accompanying guidelines to help state courts and child welfare agencies implement ICWA to provide clarification on important aspects of the law including standard of practice with families.
A Practical Guide to the Indian Child Welfare Act (Native American Rights Fund)
Indian Child Welfare Act Information (Casey Family Programs and Native American Rights Fund)
ICWA Guide for Tribal Governments and Leaders
Compliance with ICWA is mandatory yet many state and court systems are still struggling to understand and effectively meet these requirements. Non-compliance with this law perpetuates the disproportionate numbers of American Indian and Alaska Native children represented in state and county child welfare systems today. The Bureau of Indian Affairs (BIA) addressed this continued non-compliance by disseminated federal regulations governing ICWA in 2016. These regulations serve to create more consistency in ICWA implementation.
American Indian and Alaska Native youth are overrepresented in foster care systems. Native children enter into foster care nationally at a rate 2.6% times higher than non-Native children. For some individual states, this rate is drastically higher. In Minnesota, for example, the disproportionality index is 13.9.
Map: Disproportionality Rates for Children of Color in Foster Care, National Council of Juvenile & Family Court Judges (2017)
Improving the Well-Being of American Indian and Alaska Native Children and Families Through State-Level Efforts to Improve Indian Compliance indicates the most critical issues for noncompliance involve:
1) lack of regular oversight of ICWA implementation,
2) AI/AN children not being identified early in child welfare proceedings,
3) tribes not receiving early and proper notification of child welfare proceedings involving their member children and families,
4) lack of placement homes that reflect the preferences defined within ICWA,
5) limited training and support for state and private agency staff to develop knowledge and skills in implementing ICWA, and
6) inadequate resources for Tribal child welfare agencies to participate and support their state and private agency counterparts.
ICWA Best Practice
Without tribal, state and court collaboration to address how ICWA can meet the needs of Native children, the goals of ICWA cannot be fulfilled as the law was intended.
Indian Child Custody Proceedings Quick Reference Sheet for Tribes (Bureau of Indian Affairs)
Building an Effective Tribal-State Child Welfare Partnership (Capacity Building Center for Tribes)
Coming Together for the Children: The Maine Tribal State ICWA Workgroup (webinar hosted by Capacity Building Center for Tribes)
ICWA Partnership Webinar Series
Current Findings & Reflections From The ICWA Baseline Measures Report
This webinar shares findings from the ICWA Baseline Measures Project, which focused on building the capacity of Court Improvement Programs (CIPs) to measure the application of ICWA in state court practice.
New Lessons Learend in Tribal-State Partnerships
Three sites – Oklahoma, North Dakota, and Minnesota – received ICWA Implementation Partnership Grants from the Administration of Children and Families to create timely and effective models of partnership. Learn about the outcomes they achieved as they share their journeys and lessons learned in this 90-minute webinar.
NEW MEXICO TRIBAL INDIAN CONSORTIUM (NMTIC) STATE-PARTNERSHIP WEBINAR SERIES
Through these recorded webinars, presenters share their experiences around tribes in New Mexico coming together to address child welfare, the development of a state-tribal office, and most recently, ICWA higher standards which were enacted on July 1, 2022.
In this three-part webinar series, you will learn:
- How the New Mexico Tribal Indian Child Welfare Consortium (NMTIC) was created, how the group approaches partnership, and how members respect and embrace each tribes’ unique values
- How the NMTIC partnership with state departments has improved outcomes for Native children and families and led to the development of the State Office of Tribal Affairs within the New Mexico Children Youth and Families Department (CYFD)
- How the NMTIC and NM Partners, a coalition of tribal, state, and court agencies, worked together effectively to draft and pass the Indian Family Protection Act, establishing higher standards for ICWA within New Mexico
Recorded Webinar: ICWA Implementation Partnership Grants
State-Tribal Partnerships: Coaching to ICWA Compliance
Learn about supporting culturally responsive services for American Indian and Alaska Native children, youth, and families and increasing ICWA compliance. Use this 3-day in-person training to engage in collaborative learning and action planning for stronger state-tribal partnerships.
Register for free access to this curriculum and materials from the Capacity Building Center for States!
State ICWA Laws
Federal law sets the minimum standards that must be met. Some states implement their own comprehensive standards.
- Michigan Indian Family Preservation Act
- State of Michigan ICWA/MIFPA Field Guide
- 2017 Michigan Indian Family Preservation Act of 2013 and Indian Child Welfare Act of 1978: A Court Resource Guide
- Minnesota Indian Family Preservation Act
- MnCFSR Onsite Review Instrument ICWA Addendum
- Understanding and Applying ICWA: Purpose, Strategies, Practice, and Resources
- Tribal/State Agreement
- Wisconsin Indian Child Welfare Act
- Missing Threads: The Story of the Wisconsin Indian Child Welfare Act
- ICWA Regulations Comparison Chart
- Wisconsin Indian Child Welfare Desk Aid
- Wisconsin ICWA E-Learning
- Wisconsin ICWA Judicial Checklist
Receipt of an ICWA Notification provides an opportunity for a tribe to defend their rights under ICWA, determine any tribal resources available to the family, and protect the best interests of the tribal child(ren). While the responsibility for inquiry and notification lies with state and county child welfare systems, this resource offers suggestions that tribes can incorporate into their own practice to support states’ and counties’ efforts to effectively implement and fully comply with ICWA.
Active efforts, a legal requirement included in ICWA, is the gold standard of child welfare practice. Designed to keep families together, active efforts outline the actions caseworkers must take to prevent removals and prioritize reunification.
ICWA requires state child welfare agencies and courts to obtain the testimony of a Qualified Expert Witness at the removal hearing and in the event of a termination of parental rights.
View this resource list to learn more about the critical role QEWs play in protecting Native children and tribal nations.
ICWA requires state and county child welfare agencies and courts to follow preferred placement preferences, in the absence of good cause, for both adoptive and pre-adoptive or foster care placements of Native children. These preferred placements work to keep Native children connected to their families, communities, and culture.
ICWA Implementation Partnership Grant 2017-2023: Project Overview and 2023 Summit Report (Center for Regional and Tribal Child Welfare Studies, University of Minnesota Deluth)
A Guide to Compliance with the Indian Child Welfare Act (National Indian Child Welfare Association)
Measuring Compliance with the Indian Child Welfare Act: An Assessment Toolkit (National Center for Juvenile and Family Court Judges)
A Research and Practice Brief: Measuring Compliance with the Indian Child Welfare Act (Casey Family Programs)
Improving Compliance Through State-Tribal Coordination (Center for Court Innovation)
Child and Family Services Reviews: Fact Sheet for Tribal Child Welfare Officials (Children’s Bureau)
Racial Disproportionality and Disparity in Child Welfare (Children’s Bureau)
Enforcement of ICWA Requirements (Native American Rights Fund)
Dragonfly artwork courtesy of Marissa Joly
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