Why the Indian Child Welfare Act Still Needs Defending

In the late 1960s and early 1970s, surveys by the Association on American Indian Affairs found that between 25 and 35 percent of all Native children in the United States had been separated from their families. The great majority of them, around 85 percent in the studies cited to Congress, were placed with non-Native families or institutions. Whole communities lost a generation of children, not through war, but through social workers, county courts and adoption agencies.

The Indian Child Welfare Act of 1978 was the answer to that crisis. Nearly fifty years later it is still under attack, and the Supreme Court decision that upheld it in 2023 did not end the fight. I want to explain what the law actually does, why the arguments against it fall apart on inspection, and what ordinary people can do to protect it in their own state.

What the Indian Child Welfare Act Requires

ICWA applies to custody proceedings involving an "Indian child," meaning a child who is a member of a federally recognised tribe or eligible for membership and the biological child of a member. It does not cover divorce custody between parents. It covers foster care, termination of parental rights and adoption.

Its core protections are straightforward:

Notice to the tribe. The child's tribe must be told about the case and has the right to take part.
Tribal jurisdiction. Tribal courts generally hold jurisdiction over children who live on the reservation, and state cases can often be transferred to them.
Active efforts. Agencies must make active efforts to keep the family together, a higher bar than the "reasonable efforts" standard used elsewhere.
Higher standards of proof. Clear and convincing evidence for foster placement, and proof beyond a reasonable doubt before parental rights can be terminated.
Placement preferences. For adoption, priority goes first to extended family, then to other members of the child's tribe, then to other Native families, unless there is good cause to depart.

None of this bars a non-Native family from adopting a Native child. It sets an order of preference and asks courts to explain when they depart from it.

Why the Law Was Written in the First Place

ICWA did not appear from nowhere. It followed more than a century of deliberate removal, beginning with the boarding schools that took children from their homes to "kill the Indian, save the man." We have written about that system in detail in our piece on the Indian boarding school legacy.

When the schools closed or shrank, removal continued through other routes. The Indian Adoption Project, run between 1958 and 1967 with federal support, placed hundreds of Native children with white families in other states. Social workers routinely judged Native homes as unfit for reasons that had nothing to do with safety: grandparents raising children, crowded houses, poverty, or simply unfamiliar customs. Congress heard this testimony for four years before it passed ICWA.

What Haaland v. Brackeen Settled, and What It Left Open

In June 2023 the Supreme Court decided Haaland v. Brackeen by a 7 to 2 vote. Texas and several adoptive families had argued that ICWA exceeded the power of Congress and forced states to carry out federal policy. The Court rejected those arguments and confirmed that Congress has broad authority over Indian affairs.

That was a major win. But the Court did not rule on the most dangerous claim: that ICWA discriminates by race and violates equal protection. It dismissed that part because the challengers lacked standing. Justice Kavanaugh wrote separately to say the issue was serious and could return. Advocates should take him at his word. The next challenge is a matter of when, not if.

The Race Argument Gets Tribal Status Wrong

This is the argument you will hear most often, and it deserves a direct answer. Critics say ICWA treats children differently because of their race, and that the "best interests of the child" should be the only test.

The flaw is that tribal membership is a political status, not a racial one. Tribes are governments with their own citizenship rules. The Supreme Court recognised this distinction in Morton v. Mancari in 1974, and federal Indian law has rested on it ever since. A child eligible for membership in the Navajo Nation or the Cherokee Nation is connected to a sovereign government, much as a child with dual citizenship is connected to another country. The question of who belongs, and how tribes decide it, is complicated, as we explored in how tribal enrollment works, but it is a question of citizenship.

The "best interests" framing also hides an assumption. Child welfare research consistently finds that children do better when they keep ties to family and culture. ICWA does not override a child's interests. It defines them more honestly than courts did before 1978. It is no accident that national child welfare organisations have called ICWA the gold standard for child welfare practice.

Protecting ICWA at the State Level

Because a future court could weaken the federal law, a growing number of states have written ICWA protections into their own codes. Washington, Minnesota, Michigan, California and Colorado are among those that have state level ICWA laws, some of them stronger than the federal version. If the federal law were struck down or narrowed, these states would keep the protections in force for families inside their borders.

Most states have not done this yet. That makes state legislatures one of the most practical places for advocacy right now. A state ICWA bill is often quiet, technical legislation that passes or fails depending on whether a few dozen constituents show up and speak for it.

What You Can Do This Year

You do not need to be a lawyer to help. Some concrete steps:

Find out whether your state has its own ICWA law. If not, write to your state legislators and ask whether they will sponsor or support one.
Follow tribal and Native led organisations. Groups such as the National Indian Child Welfare Association track cases and bills and tell supporters when testimony is needed.
Volunteer as a court appointed special advocate. Ask for ICWA training. Advocates who understand the law can make sure tribes are notified and placement preferences are followed.
Support Native foster and kinship families. One of the biggest gaps is a shortage of licensed Native foster homes. Donations, respite care and practical help all matter.
Correct the record. When someone repeats the race argument, explain the political status point. It changes minds more often than you might expect.

Frequently Asked Questions

Does ICWA stop non-Native families from adopting Native children?

No. It sets placement preferences that courts must follow unless there is good cause to depart from them. Non-Native families adopt Native children under ICWA regularly when no preferred placement is available.

Does ICWA apply to children who have never lived on a reservation?

Yes. It applies based on the child's tribal membership or eligibility, not where they live. Most of its protections apply in state courts anywhere in the country.

Is ICWA safe now that the Supreme Court upheld it?

Not entirely. The 2023 ruling confirmed the power of Congress to pass the law, but it left the equal protection question unanswered. That is why state level protections matter so much.

Start With Your Own State

Look up your state's child welfare code this week and search it for "Indian Child Welfare." If it is not there, you have found the most useful piece of advocacy available to you. One letter to a state legislator, and one conversation with a local tribal social services office about what they need, will do more than any amount of sharing online. Read more about this work in our advocacy section.