The Enforcement of the Indian Child Welfare Act in Nebraska

The Indian Child Welfare Act (ICWA) is a federal and state law enacted in 1978 to curb the practice of state child welfare agencies removing Native American children from their homes and placing them in non-Indian foster and adoptive homes.  This practice had become so widespread that, at the time of ICWA’s enactment, 25 to 35 percent of all Indian children had been removed from their tribes and families and placed in foster or adoptive homes, and about 90 percent of those adoptions were in non-Indian homes.  As a result, tribes began to fear for their very survival.

The Indian Child Welfare Act was intended to address this crisis by providing additional requirements, such as notice to tribes, higher standards of proof, and specific placement preferences, in child custody proceedings involving Native American children. However, 30 years later, the problems that led to ICWA’s enactment still persist and ICWA is either ignored or misapplied in a significant number of cases.  Unfortunately, these problems are particularly prevalent in Nebraska.  For example, according to a recent report by the National Indian Child Welfare Association and Pew Charitable Trusts, Nebraska is the 8th highest state in the country in terms of the percentage of children in foster care who were American Indian/Alaskan Native and the 2nd highest state in the country in terms of the greatest disproportionality of American Indian/Alaskan Native children in foster care.

The full enforcement of ICWA in Nebraska has been a priority issue for our child welfare program at Appleseed.  Last fall, in conjunction with tribal leaders and other advocates, Appleseed helped establish a Nebraska ICWA Coalition.  The purpose of the group is to identify ICWA issues and concerns within Nebraska county and juvenile courts with the goal of working together to resolve those concerns.  In just a few short months, the Coalition has made significant progress such as developing a list of expert witnesses and other tribal resources, presenting at ICWA trainings, participating in other outreach events, and filing an amicus brief in the recent Nebraska Supreme Court decision in In re Interest of Elias L.  

Nebraska, like many states, has room for improvement in terms of implementing the spirit and the letter of ICWA in all applicable cases.  The Nebraska ICWA Coalition and Appleseed are working hard to ensure that the rights and cultural connections of Native American children are respected and preserved as required by ICWA.

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