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Native American Law

This is an introductory guide for anyone interested in researching current Native American Law or the history of the relationship between Native American tribes and the US government.

The Indian Child Welfare Act (ICWA)

The Indian Child Welfare Act (ICWA), 25 U.S.C. §1901 et seq., is a federal statute passed in 1978 because Native American children were being removed from their homes by state social workers at an alarming rate due to misunderstandings of cultural and societal differences. The intent of the Act was to set a minimum federal standard for placement of Native American children. Specifically, the Act gives preference to certain custodial situations in the event a Native American child has to be removed from their home: (1) The child should be placed with a family member within their tribe (2) The child should be placed with another family within their tribe (3) The child should be placed with a family in another Native American tribe.

Bureau of Indian Affairs (BIA)

ICWA authorizes the Bureau of Indian Affairs (BIA) to regulate and enforce the Act to ensure it is equally applied at the state level. In 1979, BIA passed guidelines for state courts to use in custody or child placement proceedings that involve Native American children. Unlike regulations, guidelines do not have the force of law. ICWA was - and continues to be - unevenly applied by state courts.

U.S. State and Federal Courts

ICWA was passed in 1978 but is still needed - and still being interpreted by the courts - today.

Some ICWA cases:

  • Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30 (1989)
  • Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 (2013)
  • Brackeen v. Bernhardt, decision pending in the 5th Circuit (2018)
    • Appealing Brackeen v. Zinke, 338 F. Supp. 3d 514 (2018)