The Indian Child Welfare Act (ICWA) is a federal law that seeks to keep American Indian children with American Indian families.  Congress passed ICWA in 1978 in response to the alarmingly high number of Indian children being removed from their homes by both public and private agencies.  The intent of Congress under ICWA was to “protect the best interests of Indian children and to promote the stability and security of Indian tribes and families” (25 U.S.C. § 1902).  ICWA sets federal requirements that apply to state child custody proceedings involving an Indian child who is a member of or eligible for membership in a federally recognized tribe.

ICWA is an integral policy framework on which tribal child welfare programs rely.  It provides a structure and requirements for how public and private child welfare agencies and state courts view and conduct their work to serve tribal children and families.  It also acknowledges and promotes the role that tribal governments play in supporting tribal families, both on and off tribal lands.  However, as is the case with many laws, proper implementation of ICWA requires vigilance, resources, and advocacy.

This law, regardless of how well-meaning, has created issues for many tribal communities and has placed some Indian children in very harmful and sometimes even deadly situations.  Since its inception into law, the major problem that Tribal Social Services have had concerns with were the number of qualified native foster homes available to provide services and placement for the large number of native youth needing care.

This is especially true in native communities that are located within the boundaries of some of our poorest reservations.  (I will use statistics from one reservation that is located nearest my location as an example.  This is by no means an attempt to place any reference on this reservation and many other reservations have similar statistics and for this reason, will not be named.)


The unemployment rate is 88%,

41% are below the poverty level,

49% of those below the poverty level are under 18

42% of these below the poverty level are under 5

33% of all families are below the poverty level

2 out of 3 members are jobless & the average annual income is $ 4421.00

Over 2000 reported juvenile crimes committed annually


Now you add in high levels of alcoholism, drug abuse, youth suicide, violence, and child abuse and neglect…and how many qualified homes do you have to provide adequate care for those children needing it.  In addition, this law has prevented numerous qualified and licensed foster homes from providing care for native youth because these households were non-native.

This law is only as good as those people who are administering it and many Indian children have been removed from highly qualified non-native homes to then being placed in substandard Indian homes due to the enforcement of this federal law.  These decisions are not always in the best interests of the child and in some case been very detrimental.

As stated earlier, these decisions are often times based on the fraction of blood degree that the child has with that particular tribe.  In order to be a member of most tribes, that level of blood degree must be as high as 1/4, but some tribes require only full-bloods, while others may allow tribal membership down to 1/32.

In fact, every tribe across America has different requirements and the fraction of blood degree is less important to most tribes than being an enrolled member of the tribe.  There are some tribal members whose background and genealogy is fairly mixed, yet they are enrolled members.  It is all about families, clans, bands, tribes, nations and culture.

Case in point:

In a decision handed down this morning, The Oklahoma Supreme Court said the girl’s classification as an Indian because she is 3/256ths Cherokee was not grounds enough for her to be taken “from the only parents she had ever known and handed over to her biological father, who had attempted to relinquish his parental rights and who had no prior contact with the child.”

The High Court overturned the South Carolina Supreme Court.  Now the case will head back into South Carolina family courts where they will decide what is in the best interests of Veronica, who has been living with her biological father since December 2011.

Justice Alito said in his majority opinion that the involuntary termination of parental custody law does not apply, when the parent never had custody.

“Finally, we clarify that §1915(a), which provides placement preferences for the adoption of Indian children, does not bar a non-Indian family like Adoptive Couple from adopting an Indian child when no other eligible candidates have sought to adopt the child,” Alito penned.

Alito, joined by Justices Roberts, Kennedy, Thomas and Breyer, said three provisions of the ICWA law applied to the case, but said that because of the biological father’s text message consenting to give up his parental rights, the ICWA claim was rendered moot.

After Veronica’s birth, the South Carolina family, the Capobiancos, served the biological father with a notice of intent to adopt.  He claimed in filings that he was unclear on what he was surrendering his rights, the birth mother or the Capobiancos, which triggered the custody battle in South Carolina state courts.

That’s when the ICWA first came into question.

“The State Supreme Court first determined that the ICWA applied because the case involved a child custody proceeding relating to an Indian child,” Alito wrote. “It is undisputed that, had Baby Girl not been 3/256ths Cherokee, Biological Father would have had no right to object to her adoption under South Carolina law.”

Cherokee Nation Chief, Bill John Baker said he is grateful that the court upheld the Indian Child Welfare Act, but is disappointed the case was not fully resolved.

The Capobiancos have not had contact with Veronica since New Year’s Eve 2011 when she was 27 months old.

Veronica’s birth mother, Christy Maldonado, said in a statement Tuesday that she was happy about the Supreme Court’s decision.

“Today’s opinion makes clear that Veronica’s adoption should have been finalized long ago, and gives us all the opportunity to continue fighting for Veronica’s best interests. I’m also hopeful it will spare many other children and families the heartbreak that Veronica, the Capobiancos, and I have had to endure,” she said.