HOW THE ICWA PENALTY BOX WORKS
“[A]ll men must operate under one general law. And while you ask yourselves, what do they, the
Indians, want? you have only to look at the unjust laws made for them, and say they want what I
want, in order to make men of them, good and wholesome citizens.”
Among its many other provisions, ICWA includes six provisions that diverge
significantly from the rules that apply to non-Indian children in foster care and adoption
proceedings. These are: ( 1) jurisdictional rules that mandate transfer of child welfare cases to
tribal court and give tribes rights as parties to these cases on a par with the rights of parents112;
( 2) the “active efforts” requirement that essentially requires child welfare workers to return
children to the custody of unfit birth parents113; ( 3) the “clear and convincing evidence” standard
applicable in foster care cases114; ( 4) the “beyond a reasonable doubt” standard that states must
apply in termination of parental rights cases115; ( 5) race-based foster and pre-adoptive placement
preferences116; and ( 6) race-based adoptive placement preferences. 117 Together, these provisions
create “the ICWA penalty box”—a set of legal disadvantages that make it harder to protect
Indian children from abuse, and to find them permanent adoptive homes. 118
111 WILLIAM APESS, A PEQUOT, A SON OF THE FOREST AND OTHER WRITINGS 138 (Barry O’Connell, University of
Massachusetts Amherst Press, 1997) (1836).
112 25 U.S.C. § 1911(b), (c).
113 Id. § 1912(d).
114 Id. § 1912(e).
115 Id. § 1912(f).
116 Id. § 1915(b).
117 Id. § 1915(a).
118 See, e.g., Adoptive Couple v. Baby Girl, 133 S. Ct. 2552, 2563–64 (2013) (noting that ICWA’s mandates can
“unnecessarily place vulnerable Indian children at a unique disadvantage in finding a permanent and loving home”);
In re Bridget R., 41 Cal. App. 4th 1483, 1508 (1996) (“ICWA requires Indian children . . . to be treated differently
from non-Indian children . . . . As a result . . . the number and variety of adoptive homes that are potentially
available to an Indian child are more limited than those available to non-Indian children, and an Indian child who
has been placed in an adoptive or potential adoptive home has a greater risk . . . of being taken from that home and
placed with strangers.”).