By Savannah Yancy, RDF Summer Intern 2026
The Indian Child Welfare Act of 1978 was the first piece of legislation that designated
specific protections for indigenous children. Before the act was passed, many young
Native Americans were stripped away from their tribes and parents and placed in
boarding schools, group homes, or with white families. This forced removal is a
deplorable piece in the longstanding puzzle of assimilationist practices inflicted on
native tribes by the U.S. government.
The history of the Indian Child Welfare Act truly begins with the colonial activity that
culminated in the Americas in the 15th century. Settlers from various European
countries killed, pillaged, and enslaved indigenous tribes almost immediately upon their
arrival. This set a precedent for future “treaties” and legislation that would severely
harm Native American people for centuries to come.
The first piece of federal legislation that contributed to the ICWA was the Indian
Removal Act of 1830. This act, passed by then-President Andrew Jackson, forced
various indigenous tribes from their native lands. The idea of “manifest destiny”
prevailed in this administration, but it was not without pushback from the very tribes
being ousted from their homes.
Though many tribes fought long and arduous battles against the invading forces, they
were ultimately overpowered by Jackson’s army. This defeat led to one of the worst
genocidal events that has ever occurred on American soil: The Trail of Tears.
The Trail of Tears was the forced displacement of Native American tribes from their
ancestral lands An estimated 100,000 indigenous people were made to trek the grueling
landscape to designated lands west of the Mississippi River. Though dozens of tribes
were involuntarily removed from their territories, the five largest were the Chickasaw,
Creek, Choctaw, Cherokee, and Seminole. Many of their ancestors still reside in
Oklahoma today, where they have sought to maintain their sovereignty, cultural
traditions, and familial and intertribal ties.
Thousands of indigenous people died on the Trail of Tears from starvation, medical
issues, and exposure to the elements. Modern-day historians and sociologists now
categorize this event as an ethnic cleansing or, more radically, a mass genocide. Shortly
after the majority of tribes were relocated west, boarding schools began to open, which
only hastened the destruction of the Native American diaspora.
Although the first Native American boarding school was opened in 1860, these schools
primarily operated from the early 20th century until the 1970s, when the ICWA was
passed. Boarding schools were established by churches and the federal government to
strip indigenous children of their names, regalia, languages, and cultural practices.
Students were punished severely for speaking their native languages and often faced
starvation, solitary confinement, or corporal punishment for doing so.
These children were often separated from their families and tribes for years at a time,
and were usually forced to cut their hair or even bleach their skin. Many were also made
to abandon their religions or spiritual beliefs and convert to Christianity. At the time,
the phrase “kill the Indian, save the man,” coined by Carlisle Indian School founder
Richard H. Pratt, aimed to defend the actions of boarding schools.
These methods of assimilation were intended to destroy the Native American way of life
through forced separation and cultural erasure. Abuse was rampant in these
institutions, and many children died as a result of this or from untreated medical
conditions and inhumane practices.
Beginning in the 1960s, the counterculture movement sparked a renewed fervor in
Native American communities to abolish the laws and statutes that enabled their
children to be forcibly taken and sent to boarding schools or foster homes. Tribal
leaders, parents, and the Association on American Indian Affairs protested these
practices, citing that “Public and private agencies were removing 25 to 35 percent of
Native American/Alaska Native children from their homes, and 85 percent of those
children were placed in non-Native households.”
The establishment of the National Indian Youth Council in 1961 led to the culmination
of a larger campaign for indigenous rights: The American Indian Movement. Founded in
1968, the activists advocated for expanded treaty rights, cultural preservation, and tribal
sovereignty, and fought against forced assimilation and police brutality. The civil rights
group, later dubbed the “Red Power Movement,” went on to occupy Alcatraz in 1969 and
the Bureau of Indian Affairs in 1972 to protest the many broken treaties, land seizures,
and human rights violations that have been continuously perpetrated against Native
American tribes by the federal government.
Though the aforementioned social movements preceded any court cases, when these
statistics were presented to Congress in 1974, they began to hear testimonials about the
treatment of Native American children in these facilities and foster homes. These victim
statements are what eventually led to the first piece of legislation that designated
protections for indigenous children, the Indian Child Welfare Act of 1978.
The ICWA intended to ensure that indigenous children were no longer removed in
droves from their tribes and families, and gave legal precedence to relatives and tribal
members during child custody, foster care, and adoption proceedings. Though the bill
did not include language directed at forced boarding school attendance, the attention it
received, as well as the indigenous rights movements that both preceded and followed
its passing, coincided with a federal shift away from funding the assimilationist centers.
Though most federal Native American boarding schools closed in the 60s and 70s, the
last federally-owned one did not cease operations until 1996. There are still
tribally-owned boarding schools in some states (including Oklahoma), but these are
intended to preserve cultures and keep children immersed in their communities.
The intergenerational trauma caused by assimilationist practices cannot be understated
and is of a magnitude that can be difficult to measure and comprehend. But, according
to data published by the Five Nations Information Governance Committee, 20% of
indigenous adults who had at least one grandparent who attended a residential school
have attempted suicide. Similarly, the offspring of parents who attended a boarding
school are more likely to exhibit symptoms of depression and anxiety.
The collective trauma caused by residential schools has affected educational outcomes
too, as 48% of students who had at least one parent who attended a boarding school
report having learning difficulties in school and have had to repeat a grade level.
Children of boarding school attendees are also more likely to experience poverty, food
insecurity, abuse, and domestic violence.
Even though great strides have been made both socially and legally to promote cultural
understanding and restorative justice, many challenges still exist for indigenous
children in life and within the court system.
“As an attorney practicing in Oklahoma, it boggles my mind how many people have
practiced without understanding ICWA,” said Ashley Roach, the chief prosecutor for the
Absentee Shawnee Tribe at the 2026 Sovereignty Symposium in Oklahoma City.
In 2017, a case that challenged the legality of ICWA was introduced by the U.S. District
Court for the Northern District of Texas. By 2019, two other states had joined the federal
lawsuit, and by 2022, the case had reached the Supreme Court. Fortunately, the court
upheld the constitutionality of ICWA in a 7-2 vote on June 15, 2023.
Though as a nation we have found ourselves in uncertain political territory, one thing
remains clear: we must support indigenous voices, cultural practices, and tribal
sovereignty to ensure that assimilationist sentiments are never again employed by our
government or citizens.
Sources
https://www.congress.gov/bill/95th-congress/senate-bill/1214
https://history.state.gov/milestones/1830-1860/indian-treaties
https://education.nationalgeographic.org/resource/indian-removal-act/
https://americanindian.si.edu/nk360/code-talkers/boarding-schools/
https://www.theindigenousfoundation.org/articles/us-residential-schools
https://www.aclu.org/news/racial-justice/native-families-right-to-stay-together-is-at-stake-at-the-supreme-court#:~:text=Before%20ICWA%2C%20public%20and%20private,placed%20in%20non%2DNative%20households
https://www.narf.org/nill/documents/icwa/federal/lh/hr1386.pdf
https://www.congress.gov/bill/95th-congress/senate-bill/1214
https://www.closeup.org/indian-boarding-schools-the-truth-and-healing-commission/
https://narf.org/cases/brackeen-v-bernhardt/
https://www.britannica.com/topic/American-Indian-Movement
https://pmc.ncbi.nlm.nih.gov/articles/PMC4232330/#bibr12-1363461513503380