ICWA vs. California: A Battle Native Families Keep Losing

Why did California routinely fail to comply with ICWA? Because it could—and because shortly after the Indian Child Welfare Act was passed, California began receiving federal reimbursements for the “costs” of placing Native American children into foster care. Those financial incentives created a system where removing children became easier than preserving families.

Today, the nation is still watching cases like Adoptive Couple v. Baby Girl and Brackeen v. Bernhardt, which challenge how ICWA is applied when Native American children are placed outside their communities. These cases highlight the ongoing struggle between cultural preservation and state power.

ICWA was enacted to stop the widespread removal of Native American children from their tribes and to affirm the importance of heritage, culture, and family continuity. The federal government wanted states—especially California—to end unwarranted governmental interference (UGI) in tribal family relationships.

California, however, had a long history of mistreating Native American children even before ICWA. In 1850, the state passed the so‑called “Act for the Protection of Indians,” which did the opposite of protecting them. Wealthy landowners who had taken Native American children into their “care, custody, control, and earnings” were granted jury trials after being convicted of neglect or abuse—rights the children’s own families never received.

By the time ICWA became law, much of California’s Native American heritage had already been severely damaged. ICWA required that Native American children be placed with relatives, tribal members, or other Native American families. But for many children in California, the law arrived too late.

California has also rarely faced meaningful consequences for failing to comply with federal requirements tied to reimbursement. A brief apology from a state official and a small fine often resolved violations. This lack of accountability allowed harmful practices to continue.

In practice, many Native American parents were unable to “prove” their child’s tribal identity to the satisfaction of the court. Even when parents presented documentation, judges sometimes dismissed it as hearsay. I have personal knowledge of several such cases.

On the rare occasions when a tribal leader traveled from another state to claim a child, judges often kept the child as a ward of California. The tribal representative would leave empty‑handed.

Family members who attempted to regain custody were frequently disqualified by social workers before they could even appear in court. Judges then cited the child’s “best interests” as justification for keeping them in non‑Native foster homes. Another common tactic was claiming the child had already bonded with the foster family—after the biological family had been denied visitation—making ICWA compliance “too late.”

The bottom line: unless a tribe has its own courts or protective mechanisms, it is unlikely that a California judge will simply release a Native American child back to their family once the state has taken custody.

All Native American parents should be guaranteed jury trial rights in California’s juvenile dependency courts. That is the first step toward ending the unwarranted governmental interference that has devastated Native American families for generations.

Join RaiseYourRights.org to help restore these protections.