Data collection on Native American involvement in adoption and foster care is needed to remedy courts’ failures.
More than four decades after the U.S. Congress passed the Indian Child Welfare Act (ICWA), state courts still do not reliably fulfill their obligations under the statute. As a result, Native American children, families, and communities are too often denied the very protections the ICWA sought to establish.
Congress enacted the ICWA in 1978 to address the disproportionate rates at which Native American children were—and continue to be—removed from their homes and placed with overwhelmingly non-Native adoptive and foster families. These removals, Congress recognized, were frequently unwarranted, harmful to Native families and communities, and infringed upon Tribes’ inherent rights of sovereignty and self-governance.
In part because of regulatory shortfalls, thorough national data on the precise ways in which state courts and agencies derogate from their responsibilities under the ICWA is not available. It is evident, however, that state courts do not consistently take the steps necessary at the outset of a child custody proceeding to even determine whether the ICWA applies.
The ICWA leaves state courts responsible for making the threshold determination of whether the Act applies in a given case. This determination is commonly known as the “inquiry” requirement. Because state courts are responsible for determining whether the ICWA applies, its provisions, in practice, are only as meaningful as state courts are cooperative.
The applicability determination turns on whether the child is an “Indian child.” Under the ICWA, an “Indian child” is one who is either already enrolled in a Tribe or who “is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.”
Early and definitive identification of cases where the ICWA applies is essential to the effectiveness of the Act and the well-being of everyone involved in custody proceedings. But state courts cannot ensure that this identification is made properly unless the court, at the very least, asks whether the ICWA is implicated.
Even where a child is currently an enrolled Tribal member, less sophisticated parties may not volunteer that information unless prompted to do so. Furthermore, for children who may qualify as “Indian children” because they are eligible for Tribal membership, a proper state court inquiry is necessary to reveal information—sometimes about a biological parent who is not present or participating in the proceedings—indicating that the child may be covered by the ICWA and prompting further investigation, including communication with potentially affiliated Tribes.
According to the ICWA, when the state court “knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child’s tribe.” How do state courts develop such “reason to know”? Non-binding guidelines from 1979 advised that state courts “shall make inquiries to determine if the child” meets either of the ICWA’s definitions of an “Indian child.”
But in the ensuing decades, state court adherence to the ICWA remained uneven at best.
In 2014, the U.S. Department of the Interior revisited its 1979 guidelines and invited comments on the matter. These comments identified, among their authors’ chief concerns, courts’ and other state authorities’ failure to take proactive steps to identify Indian children at the outset of child custody proceedings. The Interior Department then sought to address the threshold problem of inconsistent or absent inquiry.
Through non-binding 2015 guidelines, and again in a binding 2016 rule, the Interior Department provided greater detail as to what the ICWA inquiry properly entailed. For the first time, the Department explicitly required state courts to ask at the outset of each proceeding, on the record, whether any participant knew or had reason to know the child was an Indian child.
But state court noncompliance has persisted in spite of this clear directive. What constitutes an “inquiry” is the second most frequently litigated ICWA issue in state appellate courts, and more than half of the inquiry cases are remanded because trial courts had not conducted this inquiry properly.
For example, a North Carolina appellate court in 2020 found “no evidence in the record that the trial court inquired at the beginning of the proceeding whether any participant knew or had reason to know that an Indian child was involved”—despite the Interior Department’s instructions to conduct such an inquiry. In Colorado, an appellate court corrected the trial court’s same failure to inquire in at least two decisions issued just three months apart.
Systematic and anecdotal evidence together suggest that the Department’s clarification and promotion of the inquiry requirement from guideline to rule has not resolved the issue.
This outcome is not surprising, as many of the comments submitted in 2014 asserted that state courts refused to apply or follow the ICWA not only because they were confused about how to do so, but also because of an affirmative opposition to the statute itself. Granted, state court opposition to the ICWA varies enormously among states, and some supportive state legislatures have even enacted additional protections for members of Tribes participating in child welfare proceedings.
State courts’ continued resistance—or negligence—might be more fully addressed through the strategic involvement of Tribes and other Native activists, but these stakeholders have not had access to the comprehensive data required to target their efforts.
The Interior Department sought to address this problem through a second ICWA rule also issued in 2016. This rule required states to include data in their Adoption and Foster Care Analysis Reporting System about a variety of new ICWA-related data elements, including whether “state courts are evaluating whether the child meets the definition of ‘Indian child’” under the ICWA.
Native communities have objected to the Trump Administration’s rollbacks on data collection, and at least one lawsuit challenging the change is currently pending. Without data on Indian children’s involvement in the adoption and foster care system, “Tribes have no idea how many of their children are in state systems” or whether a court has ordered that the ICWA applies to those children.
The Trump Administration’s refusal to implement the more robust 2016 Adoption and Foster Care Analysis Reporting System rule both denies advocates the tools needed to address state courts’ failure to identify children to whom the ICWA should apply and compounds the state courts’ error by failing to require due diligence in the performance of the inquiry requirement.
For the ICWA’s promises to be fully realized, state courts and the federal government alike must seek out more information, not less.
This essay is part of a series entitled Native Peoples, Tribal Sovereignty, and Regulation.