About ICWA

The Indian Child Welfare Act (ICWA) is a federal law that protects the well-being of Native children by upholding family integrity and stability within their community. Passed by Congress in 1978, ICWA ensures children can stay within their tribal community—an essential component of nurturing their cultural identity and ensuring the health and welfare of tribes. ICWA sets federal requirements on the state child custody cases that involve an Indian child who is a member or is eligible for membership in a federally recognized tribe, ensuring that agencies take measures to keep Native children in relative care whenever safe and possible. ICWA is especially important as it sets specific rules designed to ensure Native children and families involved in child welfare proceedings receive culturally appropriate services and protections. Leading child advocacy groups call ICWA the “gold standard” of child welfare policy, and look to it as a best practice for child welfare laws.

In 2017, individual plaintiffs Chad and Jennifer Brackeen, a couple from Texas, along with the state Attorneys General in Texas, Louisiana, and Indiana, sued the U.S. Department of the Interior and its now-former Secretary Ryan Zinke to challenge ICWA. The Morongo, Quinault, Oneida and Cherokee tribes intervened as defendants in the case Brackeen v. Bernhardt. In October 2018, A federal judge in the Northern District of Texas struck down much of ICWA. Defendants appealed the lower court’s decision and asked the Fifth Circuit Court of Appeals to reverse the decision.

In August 2019, the Fifth Circuit Court of Appeals reversed the decision and affirmed the constitutionality of ICWA. But the law remains at risk from continued legal threats.

Before ICWA was passed, Native American children were being removed from their families and communities at alarming rates, with a devastating impact on their upbringing and wellbeing. According to the National Indian Child Welfare Association (NICWA), “research found that 25%–35% of all Native children were being removed; of these, 85% were placed outside of their families and communities—even when fit and willing relatives were available.” ICWA was passed to help address these egregious practices and provide protections to Native children that keep them safely within their families and communities.

There is broad, bipartisan support against this misguided attack on a law that is crucial for protecting the wellbeing of Indian children and Indian sovereignty. A total of 21 attorneys general filed an amicus brief in support of the defendants, arguing that ICWA is an appropriate exercise of Congress’s broad authority to legislate in the field of Indian affairs and does not violate the Tenth Amendment or equal protection laws. The Trump administration has also reiterated its support for ICWA, tribal sovereignty and the safety of Indian children. An additional 325 tribes, 57 tribal organizations, members of Congress, Indian law and constitutional law scholars, and 30 leading child welfare organizations have also filed friend-of-the-court briefs in support of the defendants.

There are a number of resources that are helpful for learning more about ICWA, including the National Indian Child Welfare Association (NICWA) and Turtle Talk.