Indian Child Welfare Act

History and Findings

In 1978, Congress acted to halt these erosive policies and practices in enacting Public Law (P.L.) 95-608, the federal Indian Child Welfare Act (25 USC 1901 to 1963). This Act was designed to "protect the best interests of Indian children and to promote the stability and security of Indian tribes and families." The law requires state, county, and private agencies to follow specific processes in removing or considering removing Indian children from their homes or from Indian custodians when deemed in need of protection or services for reasons other than delinquency and divorce. The law also guarantees the right of tribes to participate in and be key players in child welfare decisions that affect the tribes and their members.

The Congressional findings published with the enactment of ICWA include the following:

• " ...that there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children and that the United States has a direct interest, as trustee, in protecting Indian children who are members of or are eligible for membership in an Indian tribe";
• " ...that an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions"; and
• " ...that the States, exercising their recognized jurisdiction over Indian child custody proceedings through administrative and judicial bodies, have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families." [25 USC 1901]."
  

The Congressional Declaration of Policy in the Indian Child Welfare Act states that:

The Congress hereby declares that it is the policy of this Nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs.

Since 2005, Wisconsin has been working on codifying the federal law into state statutes. A workgroup comprised of Tribal child welfare staff and attorneys and State staff reviewed laws in other states, examined hundreds of court decisions from other state and federal courts, and defined terms used in the federal law but not clearly explained. From November of 2008 through October of 2009, the Department and Tribes met numerous times with a wide variety of stakeholders to negotiate various sections of the bill.

The bill was passed unanimously by both houses of the State Legislature on October 20, 2009. Please see the Wisconsin Indian Child Welfare Act.

Last Revised: November 13, 2009