Indian Child Welfare Act
The Indian Child Welfare Act of 1978 (ICWA) ((Pub.L. 95–608, 92 Stat. 3069, enacted November 8, 1978), codified at 25 U.S.C. §§ 1901–1963.) is a Federal law that governs jurisdiction over the removal of Native American (Indian) children from their families.
- 1 Overview of ICWA
- 2 Procedures
- 2.1 Notification and Rights
- 2.2 Intervention
- 2.3 Transfer to Tribal Court
- 2.4 Existing Indian Family Exception
- 2.5 Foster Care Placement and Adoption
- 3 Supreme Court decisions regarding the ICWA
- 4 Oglala Sioux Tribe v. Luann Van Hunnik
- 5 ICWA in popular culture
- 6 See also
- 7 Notes
- 8 References
- 9 External links
Overview of ICWA
ICWA gives tribal governments a strong voice concerning child custody proceedings that involve Indian children, by allocating tribes exclusive jurisdiction over the case when the child resides on, or is domiciled on, the reservation, or when the child is a ward of the tribe; and concurrent, but presumptive, jurisdiction over non-reservation Native Americans’ foster care placement proceedings.
ICWA was enacted in 1978 because of the high removal rate of Indian children from their traditional homes and essentially from Indian culture as a whole. Before enactment, as many as 25 to 35 percent of all Indian children were being removed from their Indian homes and placed in non-Indian homes, with presumably the absence of Indian culture. In some cases, the Bureau of Indian Affairs (BIA) paid the states to remove Indian children and to place them with non-Indian families and religious groups. Testimony in the House Committee for Interior and Insular Affairs showed that in some cases, the per capita rate of Indian children in foster care was nearly 16 times higher than the rate for non-Indians. If Indian children had continued to be removed from Indian homes at this rate, tribal survival would be threatened. Congress recognized this, and stated that the interests of tribal stability were as important as that of the best interests of the child. One of the factors in this judgment was that, because of the differences in culture, what was in the best interest of a non-Indian child were not necessarily what was in the best interest of an Indian child, especially due to extended families and tribal relationships.
As Louis La Rose (Winnebago Tribe of Nebraska) testified:
- "I think the cruelest trick that the white man has ever done to Indian children is to take them into adoption court, erase all of their records and send them off to some nebulous family ... residing in a white community and he goes back to the reservation and he has absolutely no idea who his relatives are, and they effectively make him a non-person and I think ... they destroy him."
Various other groups also played a factor. The Church of Jesus Christ of Latter-day Saints (LDS Church) had an Indian Placement Program that removed Indian children from their tribes and into church members homes. By the 1970s, approximately 5,000 Indian children were living in Mormon homes. The lack of knowledge of most social workers also played into the high removal rates. Most social workers are conditioned by the "best interest of the child" as outlined by Beyond the Best Interests of the Child (Second Edition), which advocates bonding with at least one adult as a parent figure rather than taking into consideration the tribal culture of the extended tribal family. The common Indian practice of leaving a child with an extended relative was viewed as abandonment by these well-intentioned social workers, but was viewed as perfectly normal by tribal members.
During congressional consideration, at the request of Native American advocacy groups, opposition was raised by several states, the LDS Church, and several social welfare groups. The bill was pushed through by Representative Morris Udall of Arizona, who lobbied President Jimmy Carter to sign the bill.
Congress’s overriding purpose in passing the ICWA was to protect Indian culture and tribal integrity from the unnecessary removal of Indian children by state and federal agencies. Awareness of the issues facing American Indian children came about from the advocacy and research by the Association on American Indian Affairs. Congress reasoned that “there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children.”
ICWA sets the minimal Federal standards for nearly all Indian child custody proceedings, including adoption, voluntary and involuntary termination of parental rights, and removal and foster care placement of Indian children, but excluding divorce and child delinquency proceedings. ICWA provides that state courts have no jurisdiction over the adoption or custody of Indian children residing within their own tribal reservation. An "Indian child" is “any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.”
ICWA applies to a "child custody proceeding" involving an Indian child. The term "child custody proceeding" involves: (i) "foster care placements", where the child has been placed in a foster home, and the parent cannot have the child returned upon demand, but where parental rights have not been terminated; (2) terminations of parental rights; (3) "preadoptive placements", which means placing the child in a foster home after the termination of parental rights, but before or instead of an adoption; and (4) adoptions.
ICWA does not cover child custody hearings during divorce proceedings. Nor does ICWA cover cases of child delinquency where the child has done something that would be considered a crime if done by an adult. Because Indian tribes play a major part in the upbringing of Indian children that is significantly different than that of the parents, the ICWA gives important jurisdictional powers to Indian tribes in order to preserve the Indian culture. Tribal courts hold either exclusive jurisdiction or concurrent jurisdiction dependent on several factors.
Exclusive tribal jurisdiction
Under ICWA, an Indian tribe has exclusive jurisdiction over an Indian child who resides or is domiciled within the tribe's land. This includes both reservation land, other tribal lands that are held in trust by the Federal government for the benefit of a tribe or individual, or held by a tribe or individual subject to a restriction by the United States against alienation. The last two describe tribal lands such as those in Oklahoma that were transferred to individual Indians under various laws. The Indian tribal courts also have exclusive jurisdiction over Indian children who are wards of the court or tribe, regardless of their location.
Concurrent jurisdiction is shared jurisdiction between the tribal courts and the state courts. State courts have been severely criticized for ignoring the requirements of the law. In all cases that the tribal court does not have exclusive jurisdiction, they have concurrent jurisdiction. These cases would be custody proceedings involving Indian children that don't reside or are not domiciled on the tribal lands (such as someone born off the reservation and whose parents don't live on the reservation). In these concurrent decisions, the ICWA expresses a preference for tribal jurisdiction in Indian child custody proceedings.
Notification and Rights
In an involuntary proceeding, the state must notify both the parent(s) or custodian(s) and the child's tribe at least 10 days prior to the proceeding. Emergency proceedings may follow state law, but proceedings after that are controlled by ICWA. If the state cannot determine who the parent or the tribe is, then the state is required to notify the Secretary of the Interior. Notification is by registered mail, return receipt requested, and the parties notified have the right to an additional 20 days to prepare prior to the proceeding. Failure to provide such notice can cause a jurisdictional defect that may result in any such proceeding to be overturned.
The child may be provided an attorney, and the parents are entitled to one if they are indigent and cannot afford one. If the state does not have provisions for providing indigent parents an attorney, the Secretary of the Interior is to pay the attorney expenses.
All of the parties have the right to examine all documents and reports related to the proceeding.
In a removal case, the party seeking the removal (normally Child Protective Services or similar agency) is required to make active efforts to provide the parent or custodian with remedial and rehabilitative services designed to prevent the removal of the child from the Indian family. The "active effort" requirement also applies even if the party seeking removal is a private party, as in a private party adoption. The child may not be temporarily removed unless there is a likelihood of "serious emotional or physical damage" to the child if they remain in the home.
The tribe and parents or Indian custodian of the Indian child have an unqualified right to intervene in a case involving foster care placement or the termination of parental rights . The intervention may be at any time, and not just at the beginning of the proceedings. This right does not apply to pre-adoption or adoption proceedings unless it also includes the termination of parental rights.
Transfer to Tribal Court
Motion to Transfer
In a foster care or termination of parental rights case where the tribe and the state exercise concurrent jurisdiction, the tribe, either biological parent, or the Indian custodian may move to transfer the case from the state court to the tribal court.  The ICWA technically allows transfer to the tribal court at any time in the proceeding, but state courts vary on how they view transfer requests after state court proceedings are well into the adjudication process. In some cases the state will look to the Adoption and Safe Families Act to deny such a transfer based on that law's time standards. After a motion for transfer has been made, there is a presumption that the tribal court will receive the case and the state court is required to make the transfer unless one of three factors is present.
Objection to Transfer
A biological parent, whether Indian or non-Indian may object to and veto a proposed transfer of a case to tribal court. A prospective parent, the Indian child, or another party may object, but may not veto a transfer, and those objections would be covered under the "good cause" provision. In the event that a parent vetoes the transfer, the case will remain in state court. This is most commonly seen where one of the parents is non-Indian.
Declination by Tribal Court
The tribal court may decline to accept the transfer of a case from a state court. An example is where the parents move to transfer the case, but the tribe declines to accept jurisdiction due to a lack of funding for programs that would support the child and the parents at the tribal level that are present at the state level. Note that a tribal court may not be a traditional tribunal, but may be any other administrative body empowered by the tribe to act on child custody matters.
A state court may decline to transfer a case for "good cause," but that term is not defined in the ICWA. The BIA has issued an advisory set of guidelines for state courts to use in determining "good cause." While these guidelines are not mandatory, many states have adopted them, and they include:
- No tribal court as defined by the ICWA,
- The proceeding was at an advanced stage when the transfer request was made, and the party asking for the transfer did not request the transfer promptly after receiving notice of the proceeding,
- The Indian child is over the age of 12 and objects to the transfer,
- It would cause undue hardship on the parties and/or witnesses to travel to a tribal court, or
- The parents of an Indian child over the age of 5 are not available and the child has had little or no contact with the tribe.
Existing Indian Family Exception
History of the Exception
In 1982, the Kansas Supreme Court held that the ICWA " was not to dictate that an illegitimate infant who has never been a member of an Indian home or culture, and probably never would be, should be removed from its primary cultural heritage and placed in an Indian environment over the express objections of its non-Indian mother." Under the facts of the case, the court stated that the ICWA did not apply unless the child was part of an "existing Indian family unit." The court denied the Kiowa Tribe of Oklahoma the right to intervene in the case, stating that the ICWA did not apply. The court also held that even if the ICWA did apply, the trial court committed no reversible error because the non-Indian mother would have objected to the transfer of the case to a tribal court and, thus, defeated the transfer.
From the Kansas Supreme Court case sprang a body of jurisprudence around the "existing Indian family" exception to ICWA. In the years following the Kansas Baby Boy L. case, approximately half of the states adopted or expanded upon this "existing Indian family" exception, despite the fact that the language appeared nowhere in the text of the ICWA.
Subsequent to the Kansas Baby Boy L. case, in 1989, the United States Supreme Court heard Mississippi Band of Choctaw Indians v. Holyfield. 490 U.S. 30 (1989) Like the Baby Boy L. case, both parents in Holyfield consented to the voluntary termination of their parental rights and adoption of their infant by a non-Indian family. Unlike the parents in Baby Boy L., the mother in this case lived on the reservation both before and after the birth of the child off-reservation. The Supreme Court found that the child was "domiciled" on the reservation because its biological mother was domiciled on the reservation. Therefore, the exclusive jurisdiction of the tribal court under ICWA should have been invoked. The case was remanded to the tribal court for a custody determination three years after the child had been placed with non-Indian adoptive parents. Noting the potential disruption in the child's life, the Supreme Court noted that any potential harm could have been avoided if the parents and state court had not wrongfully denied the tribe its rights under ICWA.
While the Supreme Court did not consider the "existing Indian family" exception, some sources cite Holyfield as an implicit rejection of the exception. Other sources have noted that the Holyfield case is relied upon as support for both sides of the debate over the "existing Indian family" exception:
- "Surprisingly, Holyfield has been relied upon by courts and parties both to support and reject the existing Indian family exception, which has been invoked in proceedings involving Indian children and families who are living off the reservation and who are, therefore, subject to state court jurisdiction concurrent with that of the tribal court."
As of 2010, Alabama, Indiana, Kentucky, Louisiana, Missouri, and Tennessee still use the "existing Indian family" exception. Alabama and Indiana have limited its application by further court decisions. Nineteen states have rejected the doctrine, either by court decision or statute, including Kansas, where the Kansas Supreme Court expressly overturned the Baby L. decision in In re A.J.S., stating:
- "Given all of the foregoing, we hereby overrule Baby Boy L., (citation omitted), and abandon its existing Indian family doctrine. Indian heritage and the treatment of it has a unique history in United States law. A.J.S. has both Indian and non-Indian heritage, and courts are right to resist essentializing any ethnic or racial group. However, ICWA's overall design, including its "good cause" threshold in 25 U.S.C. 1915, ensures that all interests—those of both natural parents, the tribe, the child, and the prospective adoptive parents—are appropriately considered and safeguarded. ICWA applies to this state court child custody proceeding involving A.J.S., and the Cherokee Nation must be permitted to intervene."
Some critics have complained that the existing Indian family exception requires the state court to determine what it means to be an Indian child or an Indian family, by applying tests to determine the "Indian-ness" of the child. One such test involved evaluating if the child lived "in an 'actual Indian dwelling,' apparently thinking of a teepee, hogan, or pueblo." Another work notes that "state courts have taken it upon themselves to determine individuals' relationship with their tribes by examining such contacts as subscription to a tribal newsletter."
In her 1997 testimony before the Joint Hearing of the House Resources Committee and the Senate Committee on Indian Affairs, Assistant Secretary of the Interior Ada Deer (Menominee Indian Tribe of Wisconsin) stated:
- "...we want to express our grave concern that the objectives of the ICWA continue to be frustrated by State court created judicial exceptions to the ICWA. We are concerned that State court judges who have created the "existing Indian family exception" are delving into the sensitive and complicated areas of Indian cultural values, customs and practices which under existing law have been left exclusively to the judgment of Indian tribes... We oppose any legislative recognition of the concept."
Foster Care Placement and Adoption
"Foster care placement" is defined as "any action removing an Indian child from its parent or Indian custodian for temporary placement in a foster home or institution or the home of a guardian or conservator where the parent or Indian custodian cannot have the child returned upon demand, but where parental rights have not been terminated".
Supreme Court decisions regarding the ICWA
The first Supreme Court case dealing with ICWA was the 1989 case Mississippi Band of Choctaw Indians v. Holyfield (490 U.S. 30, 109 S.Ct. 1597). This Court ruled that the ICWA gives the tribal court exclusive jurisdiction over a case where the parent was domiciled on the reservation, no matter what their own personal desires are in the custody case.
The Supreme Court issued a decision pertaining to the ICWA in the case Adoptive Couple v. Baby Girl, on June 25, 2013. In a 5-4 opinion delivered by Justice Samuel Alito, the Supreme Court held that the heightened standard required under § 1912(f) of ICWA does not apply when the parent in question never had physical or legal custody of the child.
Oglala Sioux Tribe v. Luann Van Hunnik
On March 30, 2015 a partial summary judgement was made by Jeffrey L. Viken, Chief Judge of the United States District Court for the District of South Dakota in Oglala Sioux Tribe v. Luann Van Hunnik, a class action covering “all other members of federally recognized Indian tribes who reside in Pennington County, South Dakota and who, like the plaintiffs, are parents or custodians of Indian children,” granting the pleas of the plaintiffs for declaratory and injunctive relief and ordering South Dakota to:
- Provide parents with adequate notice prior to emergency removal hearings
- Allow parents to testify at those hearings and present evidence
- Appoint attorneys to assist parents in these removal proceedings
- Allow parents to cross-examine the state’s witnesses in the hearings
- Require state courts to base their decisions on evidence presented during these hearings.
On February 3, 2014, a coalition of Native American advocacy organizations, including the National Congress of American Indians, the Native American Rights Fund, the National Indian Child Welfare Association, and the Association on American Indian Affairs called on the Department of Justice to investigate Indian Child Welfare Act violations nationwide. In its letter to the Department of Justice, the coalitions stated that "there is no question, where ICWA is applied, it has been integral to keeping countless Native American families together." After citing the many cases they receive each year of ICWA violations, and non-compliance statistics, the coalitions stated that "These pleas, media stories, and statistics come as no surprise. It is well known that there is minimal federal oversight over the implementation of, and compliance with, ICWA".
In South Dakota, the particularly high level of Indian Child Welfare Act violations by the South Dakota Department of Social Services has spurred the creation the Lakota People's Law Project, an advocacy organization whose stated mission is to end what it refers to as "state kidnappings". The Lakota People's Law Project is also working to amend the Indian Child Welfare Act. They group seeks to add an enforcement clause to the ICWA that would allow families to sue the organization or government that violated their civil rights under ICWA.
ICWA in popular culture
- Adoption and Safe Families Act
- Uniform Adoption Act
- Uniform Child Custody Jurisdiction And Enforcement Act
- Association on American Indian Affairs
- Guidebook to Help Native Families Use the Indian Child Welfare Act
- Indian Child Welfare Act, (Pub.L. 95–608, 92 Stat. 3069, enacted November 8, 1978, 25 U.S.C. §§ 1901–1963)
- Indian Child Welfare Act, 25 U.S.C. § 1911
- Johnson, Troy R. (1999), "The State and the American Indian: Who Gets the Indian Child?," 14 Wicazo Sa R. 197 (University of Minnesota Press)
- Jones, B.J. (1995). "The Indian Child Welfare Act: The need for a separate law". General Practice, Solo & Small Firm Division. American Bar Association. Retrieved April 13, 2010.
- Lowe, p. 352
- H. Rep. No. 95-608, 95th Cong., 2d. Sess. (1978), reprinted in 1978 U.S. Code Cong. & Ad. News 7530, 1978 CIS H443-53
- Josephy, p. 124
- Jones, The Indian Child Welfare Act Handbook, p.12-13.
- Wilkinson, p. 258-260
- Goldstein, p. 53
- Jones, The Indian Child Welfare Act Handbook, p.3-7.
- Indian Child Welfare Act, 25 U.S.C. § 1902
- Canby, p. 196
- Indian Child Welfare Act, 25 U.S.C. § 1903
- Robert J. McCarthy, The Indian Child Welfare Act: In the Best Interests of the Child and Tribe, 27/8 CLEARINGHOUSE REVIEW 864 (December 1993).
- Indian Child Welfare Act, 25 U.S.C. § 1912
- Jones, The Indian Child Welfare Act Handbook, p.84-88. Cite error: Invalid
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- A Practical Guide to the Indian Child Welfare Act, p. 36-41
- Fort, Kathryn E. (2008) "Beyond Minimum Standards: Federal Requirements and State Interpretations of the Indian Child Welfare Act," 45 Court Review 26 (American Judges Association)
- In the Matter of N.B., 199 P.3d 16, 31 (Colo. App. 2007) (“Accordingly, we affirm the trial court's holding that stepmother's failure to show active efforts as required by 25 U.S.C. § 1912(d) precludes termination of mother's parental rights through this stepparent adoption.”).
- Indian Child Welfare Act, 25 U.S.C. § 1916
- A Practical Guide to the Indian Child Welfare Act, p. 46-49
- A Practical Guide to the Indian Child Welfare Act, p. 56-63
- Jones, The Indian Child Welfare Act Handbook, p.65-67.
- Cavanagh, Michael F. (2010), "American Indian Law: State Court Administrative Office – Court Improvement Program: Indian Child Welfare Act Forum: October 6, 2008," 89 Mich. Bar Journal 23 (State Bar of Michigan)
- In re Interest of Bianca H. and Eternity H., 2008 Neb. App. LEXIS 240 (Neb. App. 2008).
- A Practical Guide to the Indian Child Welfare Act, p. 67-72
- Guidelines for State Courts; Indian Child Custody Proceedings, 44 FR 67584
- Shageluk IRA Council v. Alaska, 2009 Alas. LEXIS 25 (Alas. 2009).
- In re Adoption of S.S. & R.S., 657 N.E.2d 935 (Ill. 1995).
- In re Baby Boy L., 643 P.2d 168 (Kan. 1982).
- A Practical Guide to the Indian Child Welfare Act, p. 1-6
- Lewerenz, Dan; McCoy, Padraic (2010) "The End of "Existing Indian Family" Jurisprudence: Holyfield at 20, In the Matter of A.J.S., and the Last Gasps of a Dying Doctrine," 36 Wm.Mit.L.R. 684 (William Mitchell College of Law)
- Like the Baby Boy L. case, Mississippi Band of Choctaw Indians v. Holyfield490 U.S. 30 (1989)
- Jones, The Indian Child Welfare Act Handbook, p.30
- Davis, Toni Hahn (1993) "The Existing Indian Family Exception to the Indian Child Welfare Act," 69 N. Dak. L. Rev. 465 (University of North Dakota School of Law)
- S.A. v. E.J.P., 571 So.2d 1187 (Ala. Civ. App. 1990).
- In re Adoption of T.R.M., 525 N.E.2d 298 (Ind. 1988).
- Rye v. Weasel, 934 S.W.2d 257 (Ky. 1996).
- Hampton v. J.A.L., 658 So.2d 331 (La. Ct. App. 1995).
- C.E.H. v. L.M.W., 837 S.W.2d 947 (Mo. Ct. App. 1992).
- In re Morgan, 1997 Tenn. App. LEXIS 818 (Tenn. Ct. App. 1997).
- In re A.J.S., 204 P.3d 543 (Kan. 2009).
- Johnson, Kevin R., p. 398
- Lemont, p. 125
- Deer, Ada E. (June 18, 1997). "Statement of Ada E. Deer". Hearing, H.R. 1082/S. 569, to amend the Indian Child Welfare Act of 1978. U.S. Congress. Retrieved April 4, 2010.[dead link]
- A Practical Guide to the Indian Child Welfare Act, p. 86-89
- Cohen, Andrew (25 June 2013). "What the Court's 'Baby Veronica' Ruling Means for Fathers and Native Americans". The Atlantic. Retrieved 5 August 2014.
- Jeffrey L. Viken (March 30, 2015). "Summary Judgement" (Court order). Retrieved April 11, 2015.
[defendants] developed and implemented policies and procedures for the removal of Indian children from their parents' custody in violation of the mandates of the Indian Child Welfare Act and in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
- Suzette Brewer (April 1, 2015). "‘A Great Triumph for Our Indian Children’: Tribes Win Landmark Child Welfare Case". Indian Country Today. Retrieved April 11, 2015.
- "Oglala Sioux Tribe v. Van Hunnik". aclu.org. ACLU. March 31, 2015. Retrieved April 11, 2015.
In a 45-page ruling, Chief Judge Jeffrey L. Viken wrote that "Indian children, parents and tribes deserve better," agreed with all seven of the ACLU's claims...
- NARF, NICWA, AAIA, NCAI. "Letter Calling for Justice Department to Investigate ICWA violations" (PDF). Retrieved March 12, 2014.
- Lakota People's Law Project. "Free the Lakota Children Petition Text". Retrieved March 12, 2014.
- Lakota People's Law Project. "ICWA Amendment Initiative". Retrieved March 12, 2014.
- Laura Sullivan; Amy Walters (October 25, 2011). "Native Foster Care: Lost Children, Shattered Families". NPR. Retrieved August 5, 2014.
- Laura Sullivan; Amy Walters (October 25, 2011). "Incentives And Cultural Bias Fuel Foster System". NPR. Retrieved August 5, 2014.
- Laura Sullivan; Amy Walters (October 26, 2011). "Tribes Question Foster Group's Power And Influence". NRP. Retrieved August 5, 2014.
- Laura Sullivan; Amy Walters (October 27, 2011). "Native Survivors Of Foster Care Return Home". NPR. Retrieved August 5, 2014.
- Canby, William C. Jr. (2004). American Indian Law in a Nutshell. Eagan, MN: West Publishing.
- Goldstein, Joseph; Freud, Anna; Solnit, Albert J. (1979). Beyond the Best Interests of the Child (Second Edition). New York: Simon & Schuster. ISBN 0-02-912200-7.
- Johnson, Kevin R. (2003). Mixed Race America and the Law. New York: New York University Press.
- Jones, B.J.; Tilden, Mark; Gaines-Stoner, Kelly (1995). The Indian Child Welfare Act Handbook: A Legal Guide to the Custody and Adoption of Native American Children (Second Edition). Chicago: American Bar Association.
- Josephy, Alvin M.; Nagel, Joane; Johnson, Troy R. (1999). Red Power: the American Indians' Fight for Freedom (Second Edition). Lincoln, NE: University of Nebraska Press.
- Lemont, Eric David, ed. (2006). American Indian Constitutional Reform and the Rebuilding of Native Nations. Austin: University of Texas Press.
- Lowe, Nigel V.; Douglas, Gillian (1996). Families Across Frontiers. The Hague, The Netherlands: Martinus Nijhoff Pub. ISBN 90-411-0239-6.
- NARF Staff (2007). A Practical Guide to the Indian Child Welfare Act. Boulder, CO: Native American Rights Fund. ISBN 978-0-9794099-1-2. Retrieved April 14, 2010.
- Wilkinson, Charles F. (2005). Blood Struggle: The Rise of Modern Indian Nations. New York: W.W. Norton & Co.
- Text of the Indian Child Welfare Act of 1978
- Indian Child Welfare Act page from the National Indian Child Welfare Association