	Background

From the 19 th century to the passage of the Indian Child Welfare Act (ICWA) in 1978, the federal government, states, and private agencies sought to separate Indian children from their tribes and families in order to "civilize" the children or provide them with better lives. One survey reported that "approximately 25–35 percent of all Indian children are separated from their families and placed in foster homes, adoptive homes, or institutions." The House Committee on Interior and Insular Affairs—the predecessor of the present-day House Committee on Natural Resources—termed the disparity between placement rates for Indians and non-Indians "shocking." The committee concluded, "[i]n judging the fitness of a particular family, many social workers, ignorant of Indian cultural values and social norms, make decisions that are wholly inappropriate in the context of Indian family life and so they frequently discover neglect or abandonment where none exists." The committee noted also that "[t]he decision to take Indian children from their natural homes is, in most cases, carried out without due process of law" and that most cases did not go through adjudication because parents voluntarily waived their parental rights in the face of coercion from the state. Adoptions Under the ICWA

To counter the high rate at which states were removing Indian children from their families and Indian communities, the ICWA provides uniform and heightened standards for involuntarily terminating parental rights, preferences for placing Indian children in Indian adoptive homes, and procedural protections for parents and Indian tribes in state court proceedings. In Adoptive Couple v. Baby Girl , the Supreme Court determined that Section 1912(f) does not apply to the termination of a parent's rights when the parent never had custody. In Adoptive Couple , the Supreme Court wrote that the ICWA's placement preferences for adoption placements apply only when there are multiple parties seeking to adopt the Indian child. In that case, the ICWA placement preferences did not apply because no parties other than the non-Indian couple were seeking to adopt the Indian child. The conflict between Indian and non-Indian social systems sometimes operates to defeat due process. The ICWA's Jurisdictional Scheme

By recognizing both exclusive and concurrent tribal court jurisdiction over custody proceedings involving Indian children, the ICWA provides an important mechanism by which tribes may participate in the placement of Indian children. Nonetheless, Indian children are still removed from their homes and placed in foster care at a rate higher than that for non-Indian children.
From the 19th century to the passage of the Indian Child Welfare Act (ICWA) in 1978, the federal government, states, and private adoption agencies sought to remove Indian children from their tribes and families in order to "civilize" the children or provide them with better lives. Congress passed the ICWA to end this practice and the high rate at which Indian children were being removed from their homes and placed with non-Indians.
One survey reported that 25%-35% of all Indian children were being separated from their families and placed in foster homes, adoptive homes, or institutions. The House Committee on Interior and Insular Affairs termed the disparity between placement rates for Indians and non-Indians "shocking." The committee concluded that many non-Indian social workers who recommended removal of Indian children from their families and communities were ignorant of Indian cultural values and social norms, and biased against typical Indian family life. The report indicated that this bias too often resulted in finding neglect or abandonment when there was none. The committee noted also that the decision to take Indian children from their natural homes was frequently carried out without due process of law and that most cases did not go through adjudication because parents voluntarily waived their parental rights in the face of coercion from the state.
Accordingly, Congress passed the ICWA to establish standards for removing Indian children from their homes, prioritizing placement of Indian children with extended family members and other Indians, and giving tribes a recognized role in the placement of Indian children by, among other things, recognizing tribal court jurisdiction over Indian child placements and adoptions. In addition, the ICWA includes important procedural protections for Indian parents, custodians, and tribes to provide due process of law.
In Adoptive Couple v. Baby Girl, the Supreme Court determined that, in a proceeding to terminate parental rights in connection with an Indian child, a number of ICWA's provisions do not apply when the parent seeking to invoke them never had legal or physical custody of the Indian child. In addition, the Court stated that the ICWA's placement preferences for adoptions of Indian children apply only when multiple parties seek to adopt the Indian children. In Adoptive Couple, because the only party before the court seeking to adopt the Indian child was a non-Indian couple, the ICWA's placement preferences did not apply to block their adoption.