§§ 1901–1963[1]) is a United States federal law that governs jurisdiction over the removal of American Indian children from their families in custody, foster care, and adoption cases.

It gives concurrent, but presumptive jurisdiction over foster care placement proceedings for Native American children who do not live on the reservation.

It was enacted to respond to the disproportionate removal of Indigenous children from Tribal communities and the resulting threat to the survival of Native American culture.

[6][7] In some cases, the Bureau of Indian Affairs (BIA) paid the states to remove Native children and to place them with non-Native families and religious groups.

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.

[13]Calvin Isaac (Choctaw Tribal leader) testified:One of the most serious failings of the present system is that Indian children are removed from the custody of their natural parents by non-tribal governmental authorities who have no basis for intelligently evaluating the cultural and social premises underlying Indian home life and child rearing.

The common Native American practices of having a child cared for by an extended relative was viewed as abandonment by allegedly well-intentioned, but arguably paternalistic, state social workers.

[18] Indian child removal is one example of a broader trend promoting Native American assimilation, particularly through the targeting of Indigenous children.

"[21] In October 2018, in the case Brackeen v. Zinke, Federal District Court Judge Reed O'Connor struck down parts of the law as unconstitutional, claiming that it mandated racial preference.

[22] In December 2018, the United States Court of Appeals for the Fifth Circuit ordered that O'Connor's judgment be stayed,[23] holding that it violated tribal sovereignty.

Notification must contain all the requisite information identified in 25 CFR § 23.111 and be sent by registered or certified mail with return receipt requested,[31] and the parties notified have the right to an additional 20 days to prepare prior to the proceeding.

[46][47] 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.

[48] ICWA requires that active efforts be made with the existing family to rehabilitate the root cause of problems prior to removal of the child.

Early intervention and support helps caregivers and families achieve better outcomes by addressing parenting skills, addictions, domestic violence, and housing instability.

By working with ICWA and the tribes to create preventative services that are culturally sensitive, states can dramatically change outcomes of families who come to their attention.

Such services need not be limited to tribal members, but are also available to foster and adoptive families to help them connect with the child's cultural roots.

In the years following the Kansas Baby Boy L. case, approximately half of the states adopted or expanded upon this "existing Indian family" exception, although such language was not part of the text of the ICWA.

[58][59] Subsequent to the Kansas Baby Boy L. case, in 1989, the United States Supreme Court heard Mississippi Band of Choctaw Indians v. Holyfield.

[70] The regulations reflect that courts that rejected the doctrine were correct to do so, and that "Congress did not intend to limit ICWA's applicability to those Tribal citizens actively involved in Indian culture.

"[72] 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.

"[73] 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.

In a 5-4 opinion delivered by Justice Samuel Alito, the Supreme Court held that the heightened standard of deferring to tribal jurisdiction, required under § 1912(f) of ICWA does not apply when the parent in question never had physical or legal custody of the child.

The Court ruled that Dusten Brown, a Cherokee man, "could not rely upon the language of a federal statute, the Indian Child Welfare Act, to protect himself against the termination of his parental rights over his daughter, Veronica, after another couple sought to adopt her.

The Court's majority decision did not address the fact that the girl's mother, who is not Native American, had attempted to hide the proposed adoption from the father, who sought custody as soon as he learned about it.

[76] Brown sought to block the adoption and gain custody of his daughter, actions supported by the two South Carolina state courts that had reviewed the case.

They ruled that his "waiver of his parental rights was invalid ... because the adoptive couple 'did not follow the clear procedural directives' of the federal law.

[91] The court unanimously ruled that at least one party had standing to bring the suit,[92] and a majority held that Congress had the authority to enact the ICWA.

[fn 4][94] The Supreme Court consolidated the other three cases into Deb Haaland, Secretary of the Interior, et al. v. Chad Everet Brackeen, et al., allotting one hour for oral argument.

Justice Amy Coney Barrett wrote the opinion for the Court, reaffirming the ICWA's consistency with Congress' authority per Article I of the U.S. Constitution.

"[98] Barbara Kingsolver's 1993 novel Pigs in Heaven explores the aftermath of the adoption of a Cherokee child by a non-Native parent under emergency conditions.