Federal Law Is Still in The Best Interests of Indian Children

David Simmons, director of government affairs for the National Indian Child Welfare Association.

 The Indian Child Welfare Act (ICWA) was a response to alarmingly high numbers of Indian children being unnecessarily removed from their families and communities. Congress understood the best interest of Indian children were not served by state and private agencies and state courts, and that led to exceedingly high numbers of out-of-home placements, many unnecessary, and inflicting long term damage to Indian children, families, and communities.

When they enacted ICWA, Congress ensured Indian children and their families would explicitly receive full consideration of their best interest.

Some critics of ICWA say state courts provide a more accurate assurance of an Indian child’s best interest, but the long history and contemporary practice of disproportionate placement and disparate treatment of Indian children leads one to a different conclusion.

First, there is no uniform definition of “best interest” – it varies from state to state. States generally use guiding principles and individual factors to make decisions impacting children and families in the child welfare system, such as services needed by the family, where to place a child temporarily or permanently, whether to reunify a child with their family, whether to terminate parental rights, and other important actions.

The standards for what meets “best interests” also varies. In a number of states, agencies and courts are given wide latitude in case requirements, creating risk for increased bias and inconsistency in the application of the best interest standard for different children and families.

For Indian children, ICWA is meant to remove the uncertainty of this and replace it with a consistent assurance of specified protections. Section 1902 of ICWA unambiguously addresses a core best interest standard for Indian children in state child custody proceedings:

“The Congress hereby declares that it is the policy of this Nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs.”

As Congress wisely saw, the best interest of Indian children is to be placed in homes that reflect the unique values of Indian culture both in short term placement decisions such a foster care as well as long term permanent placement decisions.

And the statute goes further. ICWA clarifies additional criteria for determining Indian children’s best interest: protecting the relationship Indian children have to their extended family, siblings, and community; ensuring placements in the least restrictive setting, which approximate a family; and providing that a child’s special needs, if any, are met.

ICWA also requires the state court to consider the placement preferences of birth parents in foster care and adoption proceedings. ICWA also mandates the appointment of legal counsel if it is in the child’s best interest, even if state law does not require this.

ICWA’s best interest standards go further than other federal and state child welfare laws by ensuring that an Indian child’s unique needs and interests, both political interests as a citizen of a tribal nation and cultural interests, are considered.

In sum, ICWA provides a best interest standard for Indian children that exceeds state standards and contains a more directed and focused examination of what is in the Indian child’s best interest, both short and long term, which will result in addressing immediate needs as well as facilitate development of healthy children into adulthood.

David Simmons is the government affairs director at the National Indian Child Welfare Association.

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