The Indian Child Welfare Act: A Review

Abstract

Tn 1978, the Indian Child Welfare Act became law. The Act provides for tribal jurisdiction over Indian child custody matters. It serves a dual purpose of protecting the best interest of Indian children and promoting the stability and security of Indian tribes and families. This paper will explore the historical issues as they pertain to the Act, and focus primarily on Title I which establishes child placement jurisdiction and standards. Title II will also be touched on as the avenue for funding of programs under the act. National policy regarding Indians and Indian tribes has historically consisted largely of a continual redistribution of power between federal, state and tribal entities. The extent to which Indian tribes maintain inherent sovereignty and the amount of regulation imposed by federal and state governments has long been an issue. The vacillation of legislative policy has, at times, caused confusion in situations involving both state and tribal issues. The passage of the General Allotment Act of 1887 was designed to assimilate Indians into the majority culture by dividing communally held tribal land into parcels of 40, 80, and 160 acres for allotment to Indian families, with the goal of conversion from hunting and fishing to farming. The government would retain the title in trust for 25 years and thereafter the allottee would become the owner and was free to sell the land. Rather than convert to a new way of life, many families sold the land to white farmers and as a result, Indian land holdings dropped from 140 million acres to 55 million acres by 1934. The allotment process was discontinued by the passage of the Indian Reorganization Act. The Indian Reorganization Act authorized the establishment of new reservations and additions to existing ones. Though the stance of assimilation had not been abandoned, the Act supported the value of the communal structure by giving tribes the right to adopt internal constitutions and bylaws. Due to the war and depression, funding for many provisions of the Act was cut and little progress was made on the reservations. Congressional investigations indicated that there was a need for states to assume greater jurisdiction over Indian affairs and again focused on assimilation. This reversal in policy resulted in a new policy of termination. In 1953, House Concurrent Resolution 108 was passed with its stated purpose to be to free Indians, end their status as wards of the federal government and give them all the rights of citizens. Later that year, Public Law 280 was passed which gave state government the right to intervene in certain civil and criminal actions on reservations without tribal consent. The major argument for passage of this law was that it would reduce the high incidence of lawlessness and disorder on reservations by allowing Indians to utilize state courts. State assumption of jurisdiction was mandatory in California, Minnesota, Nebraska, Oregon, Wisconsin, and later in Alaska. Other states could assume jurisdiction by legislation or constitutional amendments. Several tribes such as the Wisconsin Menominees, who had demonstrated sufficiently organized tribal law and order systems, were excluded from jurisdiction. It soon became clear that the policy of termination did not promote assimilation and the government again shifted toward tribal unity and self-determination with the passage of the Indian Civil Rights Act of 1968, which amended Public Law 280 by requiring tribal consent prior to additional state assumption of jurisdiction and empowered all states to relinquish any previously assumed jurisdiction (Limprecht 1979). Child welfare issues were not immune to the governmental policies regarding Indians. Assimilation was attempted by the systematic break-up of Indian families. The Bureau of Indian Affairs and various religious groups such as the Mormon Church, set up off-reservation boarding schools. These schools, while providing an education that might not have been available on the reservation, also succeeded in depriving Indian children of their culture and heritage. Placement of Indian children out of their homes has historically been disproportionately high when compared to their non-Indian counterparts. For example, in 1974, South