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Home > Advocacy > CWLA 2005 Children's Legislative Agenda > Tribal Child Welfare Issues


CWLA 2005 Children's Legislative Agenda

Tribal Child Welfare Issues


  • Pass legislation to provide Native American tribes with direct access to federal funding for foster care and adoption through the Title IV-E program. These improvements must be part of any comprehensive child welfare financing reform Congress considers in 2005.

  • Pass legislation to clarify and strengthen implementation of the Indian Child Welfare Act.


In 1978, Congress passed the Indian Child Welfare Act (ICWA, P.L. 95-608) to preserve cultural and family ties among Native American children and families and to ensure respect for tribal authority in decisions concerning the placement of Indian children in out-of-home care.

ICWA requires states to identify Indian children and notify the child's parents and tribe of their rights to intervene in a custody proceeding. ICWA also requires certain procedures regarding the use of tribal courts, child custody proceedings, tribal intervention standards, and placement preferences. The act also establishes a two-part requirement for states before they remove an Indian child, involving efforts to prevent the breakup of the Indian family and standards for court findings.

Congressional hearings that began in 1974 and led to the passage of ICWA in 1978 focused on child welfare issues of Native American children in out-of-home placement, with particular attention on placing Indian children in non-Indian settings or families. Studies preceding these hearings showed that between 1969 and 1974, 25%-35% of all Native American children in some states were removed from their homes and placed in foster care or adoptive homes. In some states, Native American children were 13 times more likely to be removed from their families than were non-Indian children. 1

Although ICWA established procedures and protections for placing Indian children in out-of-home care, adequate funding to provide these services did not follow. Tribal nations do not have the option of receiving federal Title IV-E Foster Care and Adoption Assistance funds directly. As a result, most Native American children placed in out-of-home and adoptive settings through tribal courts are not eligible for federal foster care maintenance or adoption assistance payments. In a few instances, some tribes have negotiated agreements with states that allow them to access Title IV-E funds.

In 2001, and again in 2003, legislation was introduced in Congress to allow tribes to apply directly for Title IV-E funding for eligible children in foster care and adoptive homes. The Indian and Alaska Native Foster Care and Adoption Services Amendments of 2003, sponsored by Senator Tom Daschle (D-SD) and Representative David Camp (R-MI), would have allowed a federally recognized tribe or consortium of tribes to submit an application to the U.S. Department of Health and Human Services (HHS) to receive federal funds for foster care and adoption assistance.

The legislation would require applying tribes to meet most of the same requirements and standards that states must meet. HHS would have some flexibility in applying these requirements. Similar to current state requirements, a tribe would have to submit a plan. As part of that plan, the tribe would have to indicate its area of service, which may not coincide with such geographic lines as city, county, or state borders. The tribal plan would also differ from a state plan in that a tribe could receive a different reimbursement rate, since the income in the service area may be lower than the particular state in which the tribal land is located. Most of the other requirements that apply to state plans would apply to tribal plans.

Representative Don Young (R-AK) introduced the Indian Child Welfare Act Amendments of 2004 in response to many loopholes and interpretation problems that have occurred in implementing the original act. The legislation sought to strengthen ICWA by clarifying how it applies to Indian children in custody proceedings, and by further defining minimum efforts before the breakup of a family. The bill also would have required that current notice provisions be afforded to extended family members, would have defined the circumstances under which federal courts could review state ICWA violations, and would have established a federal review process for compliance with ICWA.

Similar legislation will be introduced in 2005.

Key Facts

  • There are approximately 565 federally recognized American Indian and Alaskan Native tribes and about 2.5 million American Indian and Alaskan Natives. The largest population of Native Americans is concentrated in 13 states and includes more than 646,000 people. 2

  • Of the 903,089 substantiated cases of child abuse in 2001, 2%, or 18,072, involved American Indian or Alaskan Native children. 3

  • In Alaska and South Dakota, more than 45% of substantiated cases of child abuse were among American Indian or Alaskan Native children. In Montana and North Dakota, more than 20% of substantiated cases of child abuse were among American Indian children. 4

  • As of September 30, 2000, 11,359 children in out-of-home care were American Indian or Alaskan Native. 5

  • As of September 30, 2000, 2,409 American Indian or Alaskan Native children were waiting to be adopted, and 743 were adopted through public agencies. 6


  1. Brown, E.; Limb, G.; Chance, T.; & Munoz; R. (2002). The Indian Child Welfare Act: An examination of state compliance in Arizona. Retrieved online, January 10, 2005. Seattle: Casey Family Programs; Portland, OR: National Indian Child Welfare Association.
  2. Willeto, A. (2002). Native American kids 2002: Indian children's well-being indicators data book for 13 states. Retrieved online, January 9, 2005. Washington DC: U.S. Department of Health and Human Services.
  3. Ibid.
  4. Children's Bureau. (2003). AFCARS Report #8: Preliminary Estimates published March 2003. Retrieved online, January 4, 2005. Washington DC: U.S. Department of Health and Human Services.
  5. Ibid.

CWLA Contact

John Sciamanna

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