Children protected by the Indian Child Welfare Act (ICWA) benefit from higher standards for removal, kinship-focused placement preferences, and a wide range of advocacy mechanisms. While the federal act mandates state compliance, some states have strengthened ICWA compliance and enacted either a named state ICWA law, or statutes embedded in other state laws.
Frequently, issues related to ICWA intertwine with Public Law 280, which mandates state jurisdiction over federal jurisdiction for tribes in the six states which fall under this law: Alaska, California, Minnesota, Nebraska, Oregon, and Wisconsin. Tribes in these states are often exceptionally rural or have a large number of federally recognized small tribes. In these situations, tribes may not have the resources for a fully functional tribal justice system.
Researchers on this project conducted a content analysis of each state’s ICWA laws and related state statutes to determine the focuses and clarity of implementation in each state. We also sought to determine if there were differences in states affected by P.L. 280, with high American Indian/Alaskan Native populations, states with more tribal headquarters, or having a high disproportionality ratio.
The policy scan completed by our research group found that most states with identified statues (33 states) also have federally recognized tribes (31 states). However, the majority of these statutes simply announce the intent to adhere to the federal law. Five Public Law 280 states (Minnesota, Nebraska, Washington, Oregon, and California) and five other states had a named state ICWA law; the P.L 280 states’ statutes are among the most detailed. There was a connection between states who had federally recognized tribes within their borders and having a state ICWA as each state with a state ICWA had federally recognized tribes as well. States with state ICWA statutes also showed high Indigenous populations and high disproportionality.
The state ICWAs range in detail from brief discussions of jurisdiction, additions of cultural plans and practices such as customary adoption, to the Nebraska statute whose legal definitions and practices inspired many of the 2016 Bureau of Indian Affairs regulations. “Indian child” and “Indian Custodian” are defined in the overwhelming majority of the state ICWAs. The majority also provide specific clarification concerning procedures for jurisdictional transfer and placement preferences. Several portions of ICWA, including the best interest of an Indian child, active efforts, and qualified expert witnesses, are not defined. Few of the states with state ICWAs have defined these federally indicated practices. However, one state does clarify all three - Nebraska.
The ICWA implementation in 1978 marked a historical attempt to right past wrongs through the protection of Indian children and rebuilding of tribes through federal policy. This deep dive into state policy reflects the next step in the attempt to track ICWA adherence and interpretations of the federal law. Given the current threats to ICWA in the Supreme Court case Brackeen v Haaland, state ICWA laws such as those highlighted here may be the best option for preserving Indian families and communities.