Since the beginning of the United States as we now know it, Native American youth have been wrongfully removed from their homes, cultures, and communities. As such, a disproportionately large number of Native children have entered the child welfare system. To target and eliminate these discriminatory removal practices, Congress passed the Indian Child Welfare Act (ICWA) during the late 1970s. This legislation emphasizes what we know is best: keeping families together. However, over time we have seen changes and differences in how this policy is implemented and enforced in each state. This is especially relevant in Washington, a state with a long and detailed history regarding Native tribes and communities. In order to better understand the effects of federal and state policies on Native families, and the importance of ICWA in protecting the rights of tribes, we must take a closer look at the history of the child welfare system in Native communities, how ICWA was developed and enacted, and any areas of improvement to strengthen and preserve Native communities.

Before ICWA

From boarding school to forced removal from their communities, family separation and loss of identity has caused generational trauma for Native groups.

Boarding Schools: Starting in 1819 with the Indian Civilization Act Fund, then the Peace Policy in 1869, the United States built and funded what would become over 500 Indian Boarding Schools by the 1960s, with a purpose to “Kill the Indian, Save the Man” (The National Native American Boarding School Healing Coalition). Native children were removed from their families and communities to be brought to these boarding schools, often very far from home, where they were subjected to intense abuse and neglect to remove any behaviors or practices that were deemed “cultural” — such as speaking a Native language or wearing traditional clothing. The goal was to remove any sense of identity tied to a tribe or Native culture to assimilate into American society.

Scoop Era: Throughout the ’60s, ’70s, and even into the early ’80s, child welfare agencies would go to tribal reservations and ‘scoop’ as many Native children as possible (The Heart of ICWA: Becky). They would quickly remove these kids from their families and communities, take them far away, and put them up for adoption.

Indian Adoption Project: Starting in 1958, funded by the federal government (Bureau of Indian Affairs) in partnership with the Child Welfare League of America, this program was created “to stimulate the adoption of AI [American Indian] children by caucasian families on a nationwide basis” (The Indian Child Welfare Act: Retro Report). This completely ignored and avoided any safe and eligible family members or other members of the tribe wanting to take in Native children.

Throughout the 19th and early 20th centuries, almost 83% of Native school-aged youth were attending boarding schools (The National Native American Boarding School Healing Coalition). During the mid-to-late 20th century, when popularity of boarding schools declined and the government transitioned to an adoption focus, 25% - 35% of all Native American children in the U.S. were being removed from their homes; of these removals, 85% of kids were placed outside their communities and extended families, regardless if there were fit and willing relatives available (National Indian Child Welfare Association). Families were being broken apart without reason - this was a clear problem that needed to be addressed.

The start of reform

During the early 1970s, Congress started investigating this issue; at the same time, the Association of American Indian Affairs conducted research across Native lands and found consistent, high rates of removal throughout the country (American Indian Law Alliance). These reports became a driving force in demands to pass legislation protecting Native youth and families.

In 1978, the Indian Child Welfare Act (ICWA) was enacted by Congress to address the unfair and harmful removal practices against Native Americans. This crucial law led to vast improvements in how Native American children and families were treated and represented within the foster care system.

The purpose of the Indian Child Welfare Act is

“To protect the best interests of Indian children and to promote the stability and security of Indian tribes and Indian families by the establishment of minimum Federal standards to prevent the arbitrary removal of Indian children from their families and tribes to ensure that measures which prevent the breakup of Indian families are followed in child custody proceedings…”

Indian Child Welfare Act, Sec. 23.3

In other words, ICWA recognizes tribal sovereignty, preserves Native families, and ensures tribal connectedness (Understanding the Indian Child Welfare Act).

Tribes are the most qualified to make decisions about what happens to their children. ICWA added federal protections for Native youth and families, including finding placements for children removed from the home with family members first, then members of the tribe second (National Indian Child Welfare Association). This helps preserve children's connections to their family, tribe, and culture, rather than removing them from everything they know – people, places, foods, ideas — and potentially causing further trauma.

Challenges and Changes

ICWA is a federal piece of legislation, meaning that the federal government must hold states accountable in following the law. Yet disparities between states show a lack of consistent enforcement.

Around 30 years after the passage of ICWA, the Government Accountability Office looked at the child welfare system and found that Native American children were still being removed from home at disproportionately high rates; a few years later, the National Council of Juvenile and Family Court Judges saw that some states got better, some got worse, and others got much worse with removal rates of Native youth (Native American Rights Fund). This brought up questions about the effectiveness of ICWA.

In 2014, the U.S. Department of the Interior invited comments from the public, tribes, tribal organizations, and state-court representatives to discuss the effectiveness of ICWA and where potential changes may be needed. After determining that, both across and within states, ICWA interpretation and implementation have been inconsistent — resulting in large gaps in ICWA protections — the Department issued new regulations to provide updated guidelines recommended for states to utilize when following ICWA (Guidelines for Implementing the Indian Child Welfare Act). However, these regulations are not binding – meaning, states are not obligated to follow the imposed guidelines when interpreting ICWA.

When court systems and judges do not have a shared understanding and administration of ICWA, it causes cracks that Native children fall through. As a result, there are still inequities faced and disputes made against Native American families. As recently as 2023, ICWA was challenged by three states and made its way to the Supreme Court.

The lawsuit alleged that ICWA violates the anticommandeering principle of the 10th Amendment (which states that Congress is limited in forcing states to enforce federal laws); the suit also claimed that, by prioritizing Native American homes, ICWA unconstitutionally discriminates on the basis of race (Haaland v. Brackeen). The Supreme Court rejected all challenges in a 7-2 opinion and upheld ICWA.

Despite ICWA remaining intact, this case highlights how Native American children, families, and tribes continue to be at risk. ICWA sets minimum federal standards for child welfare cases involving Native youth to find appropriate placements that meet all needs of the children (National Indian Welfare Association). This ensures stronger ties to and preservation of Native American families, culture, and traditions for children who have been removed from their homes. Without these protections, Native American youth are at greater risk of losing their families, communities, and identities.

https://www.casey.org/icwa-gold-standard/

ICWA in Washington State

Here in Washington, American Indian/Alaska Native children represent roughly 1% of the general population, yet account for 4% of children in foster care (Washington State Department of Children, Youth, and Families). Compared to 2% nationwide (which is still a higher representation compared to other races/ethnicities), Washington has significantly more Native youth in the foster care system. With Bellingham and Whatcom County closely tied to Native land and tribes, our team living and working on land of the Swinomish, Samish, Sauk-Suiattle, Upper Skagit, Lower Skagit, Lummi, Nooksack, Semiahmoo, Yakama, Nuawhaha, and Stillaguamish Tribes and peoples of the Coast Salish Sea, Skookum Kids sees these disparities firsthand.

Since Washington has a higher rate of Native youth and families involved in the child welfare system, it is extremely important to have policies and procedures in place to protect the rights of Native children, parents, and tribes. To help address this issue, Washington has spent decades creating and developing guidelines and practices to follow when working ICWA cases. These work together to ensure all ICWA cases are followed properly to protect the rights of Native families and tribes in a timely and culturally appropriate manner.

Local Indian Child Welfare Advisory Committees: Serving since the early 1970s, these committees were established to advise the Washington Department of Children, Youth and Families (DCYF) on cases involving Native children to preserve cultural heritage, prevent unjust removal, and ensure proper placement and/or seek reunification; now, Local Indian Child Welfare Advisory Committees also hold DCYF accountable in following all federal and state laws pertaining to Native child welfare cases (Local Indian Child Welfare Advisory Committees).

Memorandum of Agreement: Memorandums of Agreement started in 1987 as agreements between federally recognized tribes and Washington State. These are individual standards decided between each tribe and the state to set roles and responsibilities for both parties when coordinating to provide child welfare services for Native youth (Tribal/State Memoranda of Agreement). Memorandums of Agreement are very important for building relationships between DCYF and tribes because each document is unique and specific to the tribe and their needs.

Indian Child Welfare Policies and Procedures: The Indian Child Welfare Policies and Procedures manual was first created in 1991 in partnership between Washington tribes, national experts, and the Washington Department of Social and Health Services to provide detailed instructions on when and how ICWA applied to child welfare cases, the role of child welfare employees, and the tribe’s role throughout these cases (History - DCYF). This manual clearly outlines the policies and procedures that DCYF and any Children’s Administration staff, or licensed/certified/contracted agencies must follow in cases involving ICWA children and families (Indian Child Welfare Policies and Procedures). This document is regularly reviewed and revised to comply with all federal and state regulations.

Washington State Indian Child Welfare Act: In 2011, Washington legislature passed this act, which defines, clarifies, and codifies some of the federal ICWA’s provisions into state law (Washington Courts). This not only strengthens Washington’s commitment to following ICWA, but also provides some added protections to all ICWA cases in Washington state.

Office of Tribal Relations: The Office of Tribal Relations was established in 2018 as a department within DCYF. The office works to improve and strengthen government-to-government relationships between DCYF, tribes, and Recognized American Indian Organizations, with the purpose of assisting them and tribes to receive quality, comprehensive, culturally sensitive, and timely delivery of child welfare services (Tribal Relations).

You can find a more detailed history on the development of the various departments and policies centered around protecting Native children, families, and tribes from DCYF.

The Indian Child Welfare Act is a crucial piece of legislation that protects the rights of Native children, families, and tribes. The four main principles of the act: children’s right to their families and communities; active efforts to preserve and reunify families; valuing inclusive and diverse cultural practices; and authentic engagement with tribes, reflect the most important priority — meeting the needs of the child (Casey Family Programs). As such, ICWA is often considered the “gold standard” of child welfare policy. These standards highlight best practices for keeping kids safe at home and connected to their families, cultures, and identities. Therefore, we must continue to utilize and defend ICWA, as well as state policies and practices, so Native youth, families, and tribes are protected against inappropriate removals and placements of children.

Skookum Kids is committed to upholding and protecting the rights of Native youth and families. We recognize the traumas that these communities have endured, and work with tribes to improve our programs to more accurately meet the needs of Native youth and families in an accessible and culturally sensitive way. As an organization with close ties to indigenous lands, tribes, and cultures, we are honored to play a part in strengthening and supporting Native families.

Sources:

American Indian Law Alliance: https://www.un.org/esa/socdev/unpfii/documents/The%20Indian%20Child%20Welfare%20Act.v3.pdf

Casey Family Programs: https://www.casey.org/icwa-gold-standard/

Guidelines for Implementing the Indian Child Welfare Act: https://www.bia.gov/sites/default/files/dup/assets/bia/ois/pdf/idc2-056831.pdf

Haaland v. Brackeen: https://www.supremecourt.gov/opinions/22pdf/21-376_7l48.pdf

The Indian Child Welfare Act: Retro Report https://kcts9.pbslearningmedia.org/resource/indian-child-welfare-act-icwa-video/retro-report/

Indian Child Welfare Policies and Procedures: https://www.dcyf.wa.gov/sites/default/files/policy-archive/2021SeptICW.pdf

The Heart of ICWA: Becky

https://www.youtube.com/watch?v=tYMG13pKq4Y&list=PLDv7Yx44CyGQWp2gwf094UnZBeKnMJx5w&index=4

History - DCYF: https://dcyf.wa.gov/dcyf-policies/2-1-history

Local Indian Child Welfare Advisory Committees: https://dcyf.wa.gov/tribal-relations/government/licwac#:~:text=The%20Local%20Indian%20Child%20Welfare%20Advisory%20Committee%20(LICWAC)%20will%20preserve,in%20the%20least%20restrictive%20environment%2C

National Indian Child Welfare Association: https://www.nicwa.org/about-icwa/