Native Americans and The Indian Child Welfare Act (ICWA)
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Native Americans and The Indian Child Welfare Act (ICWA)

This is an excerpt from Chapter 4 of “The Adoption Paradox” on the History of Adoption.

The tales of the atrocities of the U.S. government against Native Americans are lengthy and well-known. There are two key aspects to note when one looks at any policy regarding them. The first is that what the government primarily wanted was their land. The second is that while negotiating for that land, the treaties that were created recognized the tribes and their people as their own sovereign nations. 

These facts, along with the absence of slavery, are what sets any discussion on the adoption of Native American children apart from African Americans or other racial minorities. The primary view of most Caucasians, however, was that the savage Indian needed to be culturally subjugated and brought into the superior way of life of Christian values and to adapt to this culture.

The Indian Removal Act of 1830 created the policy in the U.S. to forcibly relocate Native Americans from their tribal lands, sometimes far away from their original homes. Beyond that, it extended to the forcible breakup of individual Native families.

Boarding Schools

In 1881 the government directed the Bureau of Indian Affairs (BIA) that school attendance for Indian children was compulsory, or they would be denied basic treaty rights such as rations or clothing.[1] Most reservations did not contain day schools, so boarding schools needed to be built and opened. Thousands of Native children were taken from their homes and placed into the “Carlisle Indian Industrial Schools”. Fifty of these schools spread rapidly throughout the Midwest and Eastern States. The children were not allowed to communicate in their native language and forced to speak only English, practice the Christian faith, and made them cut their hair and wear only non-tribal clothing. These rules intended to systematically remove their culture and assimilate them into the American one. A man named Henry Pratt founded the boarding schools and had a famous motto, “Kill the Indian, save the man”.[2]

Abuse was rampant in the schools, and a report done in 1928 wrote that children were living in terrible conditions without adequate food, suffered from chronic health conditions, and were without even proper toilet facilities in the overcrowded dormitories. The quality of the education was also questionable, as the attendees worked the first half of the day to support the school.

It is now known due to a recent report commissioned by the U.S. Interior that at least five hundred of those children died in the United States, although one wonders if that number might be falsely low.[3] In Canada, over one thousand unmarked graves were recently discovered with Native children in similar institutions.

In the years between the late 1800s and 1934, when the forced allotment of Indian lands by the U.S. government was formally halted, the Native tribes had collectively gone from having one hundred thirty-eight million acres to only forty-eight million, of which forty percent was desert or semi-desert.[4]

The Indian Adoption Project

The 1950s and 60s ushered in a new era as Indian boarding schools became culturally unpopular, although they continued operating into the early 1970s. Instead, the Indian Adoption Project was born. From 1958 to 1967, the federal government partnered with the Child Welfare League of America to remove Native children from their families and place them with white ones with the continued goal of assimilating them into white, Christian culture.

Remember, this was while “matching” was common in most Caucasian adoptions to hide the obvious clues that an adoption had occurred. But the organizers of this movement didn’t appear to care, as the higher goal of removing all traces of Native identity outweighed all other concerns.

The number of children adopted because of the project is comparatively small relative to the boarding school program and is estimated to be about four hundred overall. However, it is important because it is the first and only federal program designed to promote what was viewed as “transracial” adoption at the time.[5]

It is estimated that ninety percent of these adoptions were into white families, and by 1968 there was more than one tribe that had all of its children placed outside their native homes. 

“One little, two little, three little Indians — and 206 more — are brightening the homes and lives of 172 American families, mostly non-Indians, who have taken the Indian waifs as their own.”

~1966 Bureau of Indian Affairs Press Release

What is unknown is the extent to, or how exactly, these children were surrendered in the first place. Unwed young tribal mothers faced the same bias and judgment for their situation as their white counterparts. However, far fewer resources were available to these tribal members living on the reservation. They were poor, and these communities often struggled with basic needs – it was typical that only twenty percent of the homes had indoor plumbing. Social workers and others responsible for the safety of children believed they should be “far from the reservation” where there were more resources for them.

“As sad and as terrible as the conditions are that Indian children must face as they grow up, nothing exceeds the cruelty of being unjustly and unnecessarily removed from their families…Indian children are removed from the custody of their parents or Indian foster family for placement in non-Indian homes without sufficient cause and without due process of law.”

~William Byler, Executive Director of the AAIA, 1968

The Mormon Church

Dating back to their first days in Utah, the Church of Jesus Christ of Latter-Day Saints members had a lengthy and complex relationship with Native Americans and their children. The Mormons believed that Indians were lost souls who needed to be saved and converted. Persecuted themselves, Mormons believed they were a religious “tribe of Israel” unto themselves and felt thus entitled – or even the duty – to convert them.

The church was officially against slavery but not indentured servitude. However, when they took Native children or even purchased them to remove them from the harms of slavery, they did raise these children as their own, educating them and indoctrinating them into the LDS beliefs and way of life.

The Navaho Tribal Council objected to the program, which had significantly higher numbers than the Indian Adoption Project. It is estimated that twenty-seven hundred Native children by the 1970s were in foster care with Mormon families – most of whom would come to adulthood with those caregivers. From the LDS point of view, one could argue for the success of the program, as it was estimated in 1981 that roughly twenty percent of the Navaho population was Mormon.[6]

The Indian Child Welfare Act (ICWA)

What had been happening was, in fact, a cultural genocide of Native Americans, carried out by the separation of families from their children, which the federal government and the Bureau of Indian Affairs organized. However, Native peoples and their tribes as separate nations had formal treaties with the federal government that was supposed to protect their rights. Any adoption that took place should have been treated almost as an international adoption. The social workers and adoption agencies were supposed to equally straddle and negotiate fairly with both entities. But that was not what happened.

“Social workers* and missionaries took children without any color of law…there really was no necessary connection between a court order and losing your child – the caseworker just comes and puts the child in her or his car and drives away.”[7]

 In the years prior to the ICWA at least twenty-five to thirty-five percent of all Indian children were with adoptive families, foster care, or boarding schools. Eighty-five percent of them were with non-native families, even when suitable and willing relatives were available.

Most states kept no statistics about how many of their children in the foster care system were Indian or from the reservation, and since most of them were placed outside of the legal system entirely, they would have never shown up.

Many tribes throughout the U.S. fought in State courts to try to reunite these families. The American Association of Indian Affairs (AAIA) represented and won all of the dozens of cases where they intervened. “No one on the other side had even tried to act within the law. It was just Indian kids.”[8]

The first draft of the ICWA was written in 1976, and a series of hearings were held before Congress. Organizers struggled to create a coherent and official argument through the labyrinth of barely believable tales of stolen children and the lawlessness that had occurred. “A social worker just walked up to your child and took him….and there was never a dependency hearing, never a finding of parental unfitness? These things made no sense in Congress.”[9]

With hundreds of tribes and dozens of states in the mix, what was shown was that Native families were four times more likely to have their children removed and placed in foster care than their white counterparts.

In 1978 the ICWA passed Congress and still stands as the only piece of binding national legislation on adoption ever created in the U.S. It gave tribal governments exclusive jurisdiction over children who resided on or are housed on a reservation. The act was and is considered to be the “gold standard” of the child welfare industry and set evidentiary standards higher than for non-Native families. It required that parents be offered crisis intervention services before a child can be taken, and relatives or tribal members, including those from other recognized tribes, are always given placement preference before any other options are considered.[10]

However, the law does not do two interesting things. One, the LDS church was granted an exception to the act and could continue to operate essentially as they had in the State of Utah fostering Native children. The second is that those born genetically or “racially” Indian but who were no longer part of any recognized tribe were also excluded from the act. Many tribes had physically dissolved during the later 1800s, unable to survive the pressures of the Indian Removal Act. This speaks to the point that the law is firmly centered on treating the political entity of the tribe as a sovereign nation – rather than the racial group of being Indian.

Now, ten states with high Native tribal populations have codified their own versions of the ICWA into their own state law.

The Past Influences the Present

In December 2022, the Supreme Court heard oral arguments in the case Brackeen v. Haaland, which is considering the constitutionality of the Indian Child Welfare Act (ICWA). 

The challengers said that the act is unconstitutional because it gives preference to race in placing a Native child in a Native family. In this case, Jennifer and Chad Brakeen, who are white, have been foster parents to their Native child since 2016. He was ten months old when he was placed with them – and they are the only family he has ever known. According to the terms of the ICWA, tribal authorities have the right to insist the child be placed with another family who lives far away simply because they are also Native American.

The parents did successfully adopt their son in 2018 after a legal battle but have remained passionate about changing the existing law. A prominent law firm, Gibson Dunn, agreed to represent the family pro bono to bring a suit to argue the constitutionality of the ICWA. The suit has since been joined by several other families who wish to adopt Native children in the states of Texas, Indiana, and Louisiana, where it has wound its way through the courts since 2017.[11]

The challengers state that the ICWA violates the Equal Protection component of the Fifth Amendment because it is giving preference to race in adoption. Native American children are still seen in disproportionally high numbers in the foster care system, and the law, it is argued, places barriers between those children and loving homes that wish to have them. Many non-Native couples wanting to adopt simply turn elsewhere when faced with the hurdles of adopting a Native child.

With most laws, there is the theory and intent of the law, which then in actual practice may create different or challenging outcomes. Some social workers have mixed feelings about their experiences with the ICWA. In hearing from one retired worker, she shared the following recollection:

“There were two children who had been placed with us at the Sothern Nevada Children’s Home. They were removed from their biological parents and placed with us for abuse and neglect. They did so well – made progress in school, had many friends, and were bonded with their cottage “parents”. They were removed from our care when the parents showed up out of nowhere and wanted custody without having any contact with them for two years. They were placed back with their parents who had no capability of taking care of them. There was no effort to work with them to help them establish some type of living situation, (they were living in their car), nor to place them in a Native American home. We were given no notice or information about what would happen to the kids until their court date and we were not allowed to send them their belongings – clothes, toys, keepsakes – anything!

They were returned to the custody of the State of Nevada again about two years later in northern Nevada. I have no idea of what happened to them. It was one of the most heartbreaking cases I worked on in the many years I was a social worker.

In my opinion because of the ICWA the children were placed twice in an unsafe and dangerous situation, and I was not allowed to work with the parents nor to ensure a safe placement for the children. That case has haunted me for years.”

~ Peggy Leavitt, MFT

Those defending the ICWA point to the established legal precedent of Morton v. Mancari in 1974. The Supreme Court established that decisions made in employment preferences for Natives by the Bureau of Indian Affairs were legal because it was not a “racial” preference.  Instead, it was designed to respect and encourage Indian self-government and protect the “fulfillment of Congress’s unique obligation toward the Indians.” The ruling upholds the exception to the Fifth Amendment based upon the political classification of Native tribes as their own sovereign nations.[12]

The legal arguments regarding adoption policy that was born of a genuine need by Native tribes to keep and protect their children, and culture, has far-reaching consequences. The conversation about racial preferences spills into college submissions or access to health care programs, for example, for Natives and other minority groups.

On June 15th, 2023 the high court upheld the basic tenants of the ICWA in a seven to two decision. In the majority opinion written by Justice Amy Coney Barrett, “Congress’s power to legislate with respect to Indians is well established and broad,” wrote Barrett. “When Congress enacts a valid statute pursuant to its Article I powers, state law is naturally preempted … End of story.” However, the court did not consider the Equal Protection clause of the 14thAmendment, which is the discussion about racial preferences.[13]

Justice Neil Gorsuch joined the majority decision with a somewhat different opinion writing, “The mass removal of children from their family homes in the 1950s, ’60s and ’70s, was only the latest iteration of a much older policy of removing Indian children from their families–one intentionally spearheaded by federal officials with the aid of their state counterparts nearly one hundred fifty years ago. In all its many forms, the dissolution of the Indian family has had devastating effects on children and parents alike. It has also presented an existential threat to the continued vitality of the tribes–something many federal and state officials over the years saw as a feature, not a flaw.”

“In adopting the Indian Child Welfare Act,” he concluded, Congress exercised its lawful authority “to secure the right of Indian parents to raise their families as they please; the right of Indian children to grow in their culture; and the right of Indian communities to resist fading into the twilight of history.”[14]

[1] Briggs, Laura. Somebody’s Children: The Politics of Transracial and Transnational Adoption. Duke University Press, 2012. 

[2] Briggs, Laura. Somebody’s Children: The Politics of Transracial and Transnational Adoption. Duke University Press, 2012.

[3] Asgarian, R. (2022, November 10). Texas case could change adoption rules for Native American children, and undercut tribal rights. The Texas Tribune. Retrieved April 19, 2023, from 

[4] Briggs, Laura. Somebody’s Children: The Politics of Transracial and Transnational Adoption. Duke University Press, 2012.

[5] Briggs, Laura. Somebody’s Children: The Politics of Transracial and Transnational Adoption. Duke University Press, 2012.

[6] Briggs, Laura. Somebody’s Children: The Politics of Transracial and Transnational Adoption. Duke University Press, 2012.

  • Author’s Note: the term ‘Social Workers’ will be loosely applied here, as there are many levels of social workers, case workers and other decision makers within the child welfare system.

[7] Briggs, Laura. Somebody’s Children: The Politics of Transracial and Transnational Adoption. Duke University Press, 2012.

[8] Briggs, Laura. Somebody’s Children: The Politics of Transracial and Transnational Adoption. Duke University Press, 2012.

[9] Briggs, Laura. Somebody’s Children: The Politics of Transracial and Transnational Adoption. Duke University Press, 2012.

[10] Asgarian, R. (2022, November 10). Texas case could change adoption rules for Native American children, and undercut tribal rights. The Texas Tribune. Retrieved April 19, 2023, from

[11] Asgarian, R. (2022, November 10). Texas case could change adoption rules for Native American children, and undercut tribal rights. The Texas Tribune. Retrieved April 19, 2023, from

[12] Supreme Court considers Native American preferences and classifications. JD Supra. (n.d.). Retrieved April 19, 2023, from,usually%20in%20non%2DIndian%20homes.

[13] Supreme Court upholds law giving Native American families priority in adoption. MSN. (n.d.).

[14] Totenberg, N., & Gupta, M. (2023, June 15). The Supreme Court leaves Indian Child Welfare Act intact. NPR.

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