Congress passed the Indian Child Welfare Act, or ICWA, in 1978 to protect Native American children from unnecessary removal from their families and tribal communities.
Now, almost 50 years later, there is a push to help states better carry out the legislation.
The Uniform Law Commission, a nonpartisan organization of legal experts that drafts uniform or model state laws and is made up of commissioners from all 50 states, the District of Columbia, Puerto Rico and the U.S. Virgin Islands, has approved the Uniform State Indian Child Welfare Act — a uniform law that states can voluntarily adopt to help implement the federal law more consistently.
The Uniform State ICWA does not replace the federal Indian Child Welfare Act; rather, it provides updated language, clearer legal standards and practical guidance to help states better apply the protections already established under federal law.
Kathryn Fort is the director of clinics and the Indian Law Clinic at Michigan State University College of Law, and she served as reporter for the national drafting committee that developed the Uniform State ICWA. Here, she answers questions about what the new uniform law does, why it matters and what could happen next.
What is the Uniform State Indian Child Welfare Act, and how is it different from the federal ICWA?
The Uniform State Indian Child Welfare Act reorganizes and updates how the federal Indian Child Welfare Act is implemented in state courts. It does not replace ICWA, nor does it automatically become law anywhere. Instead, it is a uniform law approved by the Uniform Law Commission that states may choose to adopt through their own legislative process.
The goal is to make it easier for judges, attorneys and child welfare agencies to consistently apply ICWA’s protections for Native children and families.
Why was a new uniform law needed if the federal ICWA already exists?
Congress passed ICWA in 1978 to establish minimum federal standards protecting Native children and families in child custody proceedings. However, implementation varies widely from state to state.
Seventeen states, including Michigan, have enacted their own state ICWA laws. I helped draft the Michigan Indian Family Preservation Act, which the Legislature passed in 2013.
Writing a state law requires significant time and collaboration among tribes, lawmakers and legal experts. Over four years, the Uniform Law Commission brought together ICWA experts, tribal representatives and stakeholders from across the country to develop a uniform law that preserves ICWA’s protections while reorganizing and updating it to better reflect today’s legal practices.
In my work with the Indian Law Clinic, I represent tribes in ICWA cases in states that do not have their own state ICWA laws, including Florida, Tennessee and Ohio. In many of those states, judges and attorneys have little experience with ICWA because there are few federally recognized tribes. This unifrom law gives those states a ready-made framework they can adopt rather than starting from scratch.
How does the Uniform State ICWA strengthen the federal law?
The Uniform State ICWA improves implementation in three important ways:
- It clearly identifies when ICWA protections apply throughout child welfare proceedings. Questions about when certain protections begin often end up in litigation. The uniform law provides greater clarity and reduces uncertainty.
- Given it is designed as state legislation, it provides clearer direction to state agencies responsible for carrying out child welfare decisions. Federal law cannot always direct state agencies in the same way that state statutes can.
- The law is written in a practical, “bench book” style that serves as a roadmap for judges and attorneys. At each stage of a case, it outlines what courts should consider — from notifying tribes and advising parents of their rights to ensuring tribes are included in proceedings.
The goal is that if a state adopts this uniform act, children and families will receive the full protections provided under ICWA, along with the additional clarity and guidance included in this uniform law.
How did you contribute to developing the Uniform State ICWA?
My involvement began with a two-year study committee that examined whether a uniform state law would be helpful. As reporter for that committee, I worked with commissioners and stakeholders to research existing state laws and develop recommendations.
After the Uniform Law Commission voted to move forward, I served as reporter for the drafting committee, helping write the legislation over another two years. That involved working closely with commissioners, tribal representatives and legal experts, revising the language line by line through meetings, discussions and extensive feedback.
As an appellate litigator, I spend much of my time looking for ambiguities in statutes and legal arguments. Writing a law required me to think differently — to anticipate how language might be interpreted and ensure it was as clear as possible.
How did your work at MSU support this effort?
Being both a clinical professor and a practicing attorney was invaluable.
My scholarship focuses on ICWA, and through the Indian Law Clinic we represent tribes in complex appellate litigation across the country. I also regularly visit tribal communities, work closely with tribal attorneys, and participate in conferences where I hear firsthand about the challenges they face.
That combination of academic research and practical experience gave me a unique perspective while helping draft this legislation.
MSU College of Law also provided the support necessary to devote significant time to the project. Funding from the ISHKODE Fund and the First Nations Development Institute supports the clinic’s ongoing work to improve ICWA practice, expand services, increase staffing and provide education for attorneys, judges and tribal communities.
What does approval of the Uniform State ICWA mean for Native families?
Approval by the Uniform Law Commission does not make the Uniform State ICWA law.
Instead, it gives states a model they may now consider adopting through their own legislative processes.
I am encouraged by the interest we have already received from tribes and legal organizations across the country. States without their own ICWA laws now have a comprehensive framework available to them, while states with existing laws — including Michigan — may choose to adopt portions of the law framework to clarify or modernize their statutes.
What do you hope happens next?
I hope this leads to greater awareness of ICWA and stronger, more consistent protections for Native children and families. Ultimately, the goal is that more Native children remain safely with their families and tribal communities, courts across the country can apply these protections more consistently, and these discussions improve child welfare practice for all children.
