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 childrens
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 childrens advocates.