Jane M. Smith
Legislative Attorney
Fromthe 19th century to the passage of theIndian Child Welfare Act (ICWA) in 1978, the federal government, states,and private adoption agencies sought to remove Indian children from their tribesand families in order to “civilize” the children or provide them with betterlives. Congress passed the ICWA to end this practice and the high rate atwhich Indian children were being removed from their homes and placed withnon-Indians.
One survey reported that 25%-35% of all Indian children were being separatedfrom their families and placed in foster homes, adoptive homes, orinstitutions. The House Committee on Interior and Insular Affairs termedthe disparity between placement rates for Indians and non-Indians “shocking.”The committee concluded that many non-Indian social workers who recommended removalof Indian children from their families and communities were ignorant of Indiancultural values and social norms, and biased against typical Indian familylife. The report indicated that this bias too often resulted in findingneglect or abandonment when there was none. The committee noted also thatthe decision to take Indian children from their natural homes was frequentlycarried out without due process of law and that most cases did not go through adjudicationbecause parents voluntarily waived their parental rights in the face ofcoercion from the state.
Accordingly, Congress passed the ICWA to establish standards for removingIndian children from their homes, prioritizing placement of Indianchildren with extended family members and other Indians, and giving tribesa recognized role in the placement of Indian children by, among other things,recognizing tribal court jurisdiction over Indian child placements andadoptions. In addition, the ICWA includes important procedural protectionsfor Indian parents, custodians, and tribes to provide due process of law.
In Adoptive Couple v. Baby Girl, the U.S. Supreme Court granted a writof certiorari in a case from the South Carolina supreme court inwhich an unwed non-Indian mother placed her child, whose biological fatheris a member of the Cherokee Nation, with a non-Indian couple without thefather’s consent. The state supreme court upheld a lower court decisionordering the adoptive parents to turn over the child to her father. TheCourt will determine the validity of the “existing Indian family” doctrineand whether an unmarried Indian father must establish his paternity under statelaw in order to assert rights under the ICWA.
Date of Report: January 28, 2013
Number of Pages: 19
Order Number: R42047
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