Nationwide studies conducted between 1969 and 1974 found that 25 - 35 percent of Native American children were being removed from their homes and placed in non-Native foster or adoptive homes by state courts and welfare agencies. Coupled with past policies - including that of forcing Native American children to attend federal boarding schools, where their culture was stripped from them - the alarmingly high rate at which Native American children were being placed with non-Native homes came to be seen as cultural genocide. The Indian Child Welfare Act of 1978 was passed to address this problem.
The Indian Child Welfare Act of 1978 was designed to protect the best interests of Native American children, families and tribes. According to the Act, child custody matters involving Native American children living on reservations come under the authority of the tribe. State court must transfer these cases to tribal court when requested to do so by the tribe, parent, or Native American custodian, except when the parent objects or there is good reason for keeping it in state court.
The Indian Child Welfare Act of 1978 established a minimum federal standard for the removal of a child from the family and placement in foster or adoptive homes. The state must prove that it actively worked to keep the family together. If a court finds that the child will be in serious emotional or physical danger if allowed to remain in the home, the child can be removed. Children are to be placed with a member of the extended family whenever possible. If there is none, they may then be placed with a tribal member or in an Indian foster home, in that order. This order must be followed in cases of adoption as well.
There have been several failed proposals to amend the Indian Child Welfare Act of 1978. One proposal, the Adoption Promotion and Stability Act of 1996, was designed to ease multi-ethnic adoptions by eliminating the need to match children to adoptive families by racial or ethnic background. This Act, which would have seriously impacted key clauses of the Indian Child Welfare Act, passed the House but was defeated in the Senate.
Some states have passed their own regulations to assist in compliance with the Indian Child Welfare Act of 1978, but the issue remains problematic as all parties struggle to balance the best interests of the child with those of the group.
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