In 1978, Congress took a giant legal step toward consolidating group rights to children by passing the Indian Child Welfare Act. ICWA is unique in several ways. First, most laws governing adoption have been passed by states. In this case the federal government overcame its reluctance to legislate because of a long history of displacement of Native American children, significant and systematic enough to be considered a genocidal policy by many tribes. In the late nineteenth and early twentieth centuries, Native American children were often placed in boarding schools in hopes that education would speed their cultural assimilation, much like the theory of the orphan trains. In the 1950s and 1960s, the Indian Adoption Project placed hundreds of Native American children with white parents, the first national effort to place an entire child population transracially and transculturally.

ICWA reversed this policy. By defining children as collective resources, essential to tribal survival, it stands as a significant exception to the rule of individualism in American law, where children’s best interests are invariably assessed case by case. ICWA made the adoption of Native American children by non-native people extremely difficult by erecting significant barriers to their adoption by anyone without tribal affiliation. It remains a source of ongoing controversy among civil rights and children’s advocates.