Tribal Self-Determination in Child Protection in the United States: Returning to Cultural Foundations

Abstract

The aim of this paper is to highlight Tribes’ efforts to Indigenize their child welfare systems through the instrument of Tribal law. Since its founding, the United States has strategically focused on Native children in its efforts to assimilate Native Peoples. By the mid-twentieth century, federal and state governments removed nearly one in four Native children from their homes—and permanently placed most in non-Native care. In 1978, Congress recognized Tribes’ inherent authority to protect their children through the Indian Child Welfare Act. Tribal nations responded by creating their own child welfare laws and programs, but at least initially, most were not predicated on their respective Tribes’ cultures, values, and worldviews. This article considers the more recent shift among Tribal nations toward Indigenization of their child welfare systems and points to examples of this shift found in Tribal law. It reviews statements of purpose within the codes, which lay the groundwork for culturally infused child protection; statements about “best interests,” which communicate Tribal concepts about the foundations of children’s wellbeing; and definitions of “family,” which can vary greatly from western views. Reflection on these changes yields several lessons for U.S.-based Tribal nations in their ongoing efforts to promote their own visions of child wellbeing and, more generally, for other governments whose responsibilities include improving child welfare.

1. Introduction

Throughout most of the 20th century, the U.S. government relied on a series of policy options—boarding schools, forced adoptions, disproportionate surveillance, and foster care placements—to separate Native children from their families and promote an assimilationist agenda. (For a detailed history of the federal government’s role in policy impacting the lives of Native children, see Supreme Court Justice Gorsuch’s concurrence in Haaland v. Brackeen (2023).) In the late 1960s, however, the federal government began to turn away from individual assimilation and Tribal termination as overt policy goals. Over the following decades, Congress passed a series of laws that recognized Tribal authority in numerous domains, including child welfare: the Indian Child Welfare Act (ICWA), enacted in 1978, affirmed Tribes’ jurisdiction over their youngest citizens. At the time, 25–35% of all Native children were removed from their families, and 85% of those children were placed in non-Native homes (U.S. House of Representatives 1978). Thus, both self-determination as a principle and restoration of children to their Tribal nations as a moral right were leading reasons for Congress’ action (Cross 2021).

While many Tribal nations responded to ICWA by creating their own child welfare laws and programs, most of these were not predicated on their respective Tribes’ cultures, values, and worldviews concerning child rearing and children’s wellbeing.1 Yet as Tribal nations have become more well-resourced and have developed greater governmental capacity, they simultaneously have worked to reclaim, reawaken, and reassert their cultures—efforts that include ensuring better institutional alignment with their cultural foundations. As a result, many more Tribes’ child welfare laws and policies explicitly draw on Tribal culture to address family issues and meet the best interests of children. Importantly, this intentional Indigenization is not merely an effort to use decolonized language; it is also intended to give rise to truly Tribal systems, empowered to produce different outcomes than have gone before, namely the healing and preservation of Native families.

The aim of this paper is to highlight Tribes’ efforts to Indigenize their child welfare systems through the instrument of Tribal law. It provides more information about the context for Tribal child welfare lawmaking, about Tribal nations’ experiences operating their own child welfare (or, child wellbeing) systems, and about culturally informed Tribal child welfare laws. In particular, it provides a variety of examples of how Tribal nations approach key child welfare provisions in their laws. The paper concludes with a reflection on these data and a discussion of lessons both for Indigenous nations in their ongoing efforts to resist colonization and expand self-determination and for other governments whose responsibilities include improving child welfare.

2. The Context for Tribal Child Welfare Lawmaking

As enshrined in the United States Constitution, American Indian and Alaska Native Tribes are sovereign nations with their own distinct governments within the family of American governments. The 574 federally recognized Tribal nations determine who their citizens are, manage affairs on Tribal lands, and craft and enact laws to meet the needs of their citizens, including their most vulnerable citizens—children.

In the area of family law and domestic relations, each American Indian and Alaska Native nation exercises jurisdiction over its own citizens (also often called members) who are residents on its lands. They also may exercise jurisdiction over citizens of other American Indian and Alaska Native nations resident on their lands and may accept transfer of jurisdiction of child custody proceedings involving their member children who are resident elsewhere from state or county (i.e., settler-colonial) courts. Given this jurisdictional framework, Tribal children’s (or juvenile) codes are laws that must be respected by other orders of government within the United States, both Indigenous and non-Indigenous. Most Tribal nations provide at least some services to children and families through a child welfare agency, or children and family services department, and some resolve disputes through a formal Tribal court.

ICWA strengthens these capacities in three ways. First, it sets minimum standards for state2 removal of Native children from their families, providing guardrails against the types of racist and discriminatory policies and practices that gave rise to mass removal. Second, it recognizes Tribal nations’ inherent jurisdiction over child welfare proceedings involving their respective member children and the power of self-determination to ascertain their children’s best interests:

Tribal self-determination is based on the premise that Tribal leaders and members are in the best position to understand the needs and priorities of their communities and thus advance Tribal governance and reservation control over policy and economic decisions. In ICWA, Congress imported the mandates of self-determination while affirming the inherent responsibility of Tribes as parens patriae3 in child welfare matters (Kunesh 2022). Third, ICWA provides a small base of funding to Tribal nations for the operation of child and family programs. Today, both ICWA and a range of complementary federal and state laws4 (which have been passed in the years since 1978 to embed ICWA in state child welfare policy and practice) form the legal framework for addressing the safety, care, and needs of Native children and their families. While the mix of systems, data reporting requirements, and Tribal sovereignty considerations makes current estimates difficult, circa 2000, approximately 40% of Native children and families involved in U.S. child welfare systems were under Tribal jurisdiction and 60% were under state jurisdiction (Earle and Cross 2001). Given ongoing system development by Tribal nations (as evidenced, for example, by the growing number of Tribal child welfare codes5) current proportions likely reflect even greater Tribal control.

ICWA applies to a subset of Indian children: those who come into contact with state child welfare systems and are members of a federally recognized Tribal nation or who are eligible for membership and have a biological parent who is a Tribal member. ICWA protections are applied based on the political relationship of Native children to their Tribal nation: a child’s status as a citizen of a Tribal nation establishes the authority of that nation’s government to be involved in decisions about what is in a child’s best interest—not their racial status.

While the U.S. Congress intended ICWA to halt the unnecessary removal of Native children from their families and communities, Native children remain disproportionately represented in state child welfare systems and continue to experience disparate outcomes. Nationally, Native children are 1% of the population and 2% of the children in state foster care (U.S. Department of Health and Human Services 2025), with disproportionality varying considerably by state (Around Him 2022; Edwards et al. 2023; Puzzanchera et al. 2023). One national study found that where abuse has been reported, Native children are two times more likely to be investigated, two times more likely to have allegations of abuse or neglect substantiated, and four times more likely to be placed in foster care than Caucasian/White children (Hill 2007). With regard to family reunification, Native children are restored to their families at disproportionately lower rates than children of other racial backgrounds (Wildeman et al. 2019).

Because state systems produce such poor outcomes for Native children and families who encounter them, Tribal systems represent an important alternative to state systems. In Tribal systems, Tribal law governs how families are treated, what services and supports are offered, and how issues such as child safety are addressed.

3. Tribal Nation Child Welfare Systems

For thousands of years before colonization and the seizure of management control over Tribal children’s welfare by U.S. settler-colonial governments, Indigenous Peoples carried out the necessary society- and nation-sustaining function of keeping children safe. This function is rooted in values, beliefs, and teachings about the sacredness of children, having so recently come from the Creator; in the responsibilities of extended family to assist in raising children; and in the role of the broader community in caring for children through culturally prescribed nurturing networks of interdependence. Indeed, in most North American Tribal languages there was no word for “orphan” because there was literally no such concept (Cross 2005).

For every Tribal nation, long experience with raising healthy and safe children has resulted in a well-established knowledge base and a culturally specific set of practices for supporting child wellbeing (NICWA 2023). In their conceptualization of Indigenous Culture-as-Health, Yamane and Helm (2022) note that “cultures have evolved over time to preserve and perpetuate the health and wellbeing of members of the group, and thus cultural practices have health benefits” (p. 169). Further, they paraphrase the argument made by Gone and Calf Looking (2011) that such practices require no external validation: “Indigenous interventions that rely on centuries or millennia of self-knowledge do not require the addition of contemporary western empirical evidence for effectiveness” (Yamane and Helm 2022, p. 169). From this standpoint, traditional child-rearing practices taught by generations of elders for hundreds or even thousands of years are evidence-based practices. They would not have been passed down had they not served families well, providing for the continuity of culture and distinct existence of Tribal communities.

The passage of ICWA created incentives for Tribal nations to implement formal child protective programs and institutions—yet initially, many did not draw on these knowledges and practices in system design. Federal funding policies are one reason why. To receive funding, Tribal nations had to conform to mainstream program and service models and to settler conceptions of “the right way to keep children safe.” They had to meet eligibility requirements, agree to prescribed uses of funds, follow external criteria for determining the population to be served, accept imposed administrative process standards, and meet certain stipulations concerning program infrastructure.6

Strategy and path dependence are additional reasons why. Tribal nations have faced resistance from states as they reclaimed jurisdiction over their children (MacLachlan 2018), and thus, some Tribes may have replicated settler laws in order to ease states’ concerns—with the intent to Indigenize their systems later, after state partners became inured to their exercise of jurisdiction. In other instances, Tribal laws may have been written by a time-strapped Tribal attorney who, rather than consulting the Tribe’s program directors and social workers, looked to other Tribes’ codes for guidance. Fletcher (2025) suggests this tendency creates a form of path dependence, with Tribal laws copying one another (and with a good deal of that mimicry reflecting early movers’ adaptation of state law) rather than reflecting a Tribe’s own customs, traditions, and ancestral wisdom.

As a result, many Tribal nations essentially replicated the child protective services and systems that had harmed their children and families and perpetuated the transmission of trauma from generation to generation. A case study of the experience of the Confederated Tribes of the Umatilla Indian Reservation poignantly describes the problem Tribal leaders, Tribal child welfare program staff, and community members faced:

[They] realized something needed to change if they were going to improve outcomes for children and families in the community. The number of children placed in foster care had either risen or stayed very high despite the best efforts of all of those involved and the various state and federal funding sources they had secured. Families did not seem to be getting better, and removing children seemed like the primary tool to ensure their safety.

(First Kids 1st 2018, p. 10)

Across Native America, these struggles underscored a dual need: Tribal nations needed access to revenue streams to support their child protective systems, and they needed flexibility in the use of funds so that they could invest in their own proven ways of ensuring children’s wellbeing. Tribal nations and their allies thus embraced an iterative advocacy strategy: moving through the various federal programs that support children and families in the child welfare system, they focused first on gaining access to funding streams and second on discretion in use. Ultimately, this strategy resulted in changes to U.S. statutory law, new and expanded Congressional appropriations, and adjustments to the internal processes of federal agencies—and made it possible for Tribal nations to re-envision and re-found their programs and services for children and families.

In so doing, Tribal nations expressed a preference for child welfare systems that serve as guardrails to stop trauma and that provide opportunities for family healing in the context of services and supports that keep children safe. The recognition that their own services were not helping families in these desired ways caused system designers to reflect on the time-tested methods their Tribal nations relied on to raise healthy children. These included beliefs and practices that emphasize the collective responsibility to “have eyes on kids” and embed the knowledge that children do better when the adults in their lives work together in nurturing networks.

Today, a growing number of U.S.-based Tribal nations have reinvigorated these networks. They have created heavily prevention-oriented child welfare systems that are composed of formal and informal elements and of funded services and unfunded community support—which often is provided by neighbors, relatives, or natural helpers and healers. The fact that parenting is hard is normalized, and how children and families in the community are faring is understood to be the community’s business. Community members in their roles as networked nurturers do not have to wait for bruises or abandonment (as was the case under the federally imposed system) to offer parents or caregivers help. Instead, they are empowered to proactively ask kids and parents how they are doing and to ask struggling parents what kind of help they need. Together, community members can set and enforce standards for the acceptable care of children and, if they so desire, codify these standards in Tribal law. The concepts of privacy and nonintervention—hallmarks of many settler-state child welfare systems that may encourage extended family and community members to look the other way when there are signs that a family needs help—are overshadowed by the concepts of interdependence and collective responsibility for the wellbeing of the community—especially children, its most vulnerable members.

For the dozens of Tribal nations that have pursued this approach, both the informal (community-based) and formal (Tribal institution-based) elements of their child welfare systems are a resource to parents. In many cases, with adequate support and services, parents can safely and effectively care for and nurture their children. When parents are unable to do so, the goals of a safe and permanent placement can be approached by “looking through the eyes of the child.”7 Good social work practice looks first to extended family to care for a child and does not force an unnecessary (and potentially false) tradeoff between quality care and a child’s sense of belonging. In fact, a growing body of research is catching up to traditional Indigenous knowledge, showing that children do best when they are raised in their family homes rather than in foster care.8

4. Methodology

In mid-2024, the National Indian Child Welfare Association (NICWA) initiated a project aimed at gaining a more comprehensive understanding of the legal frameworks Tribes have created to address their children’s wellbeing. Building from a base of Tribal child welfare codes collected in 2014, the NICWA team searched Tribal websites and digital collections of Tribal nation laws and invited Tribes to submit their codes to NICWA. This effort, aimed both at updating older documents and increasing NICWA’s holdings, resulted in a collection of child welfare codes from 164 federally recognized Tribal nations spanning all Indigenous cultural regions of the continental United States and Alaska. While the collection is by no means “complete” (i.e., it does not contain the Tribal child welfare laws of every Tribe that shares geography with the United States), it provides a deep well of data concerning Tribes’ legal frameworks for addressing the wellbeing of children under their jurisdiction.

To gain a clearer view of how Tribes are using their jurisdictional authority to express their own cultural understandings of wellbeing for children and of the ways to raise healthy children, this paper examines three elements of Tribal child welfare codes: purpose or philosophy, best interest of the child, and definition of family. The examples shared have been chosen for their diversity, so that considered together, they demonstrate key policy choices Tribal nations have made to make child protection processes “their own.” Only codes that Tribes have made available on the public-facing portions of their websites or (for non-posted codes) that Tribes explicitly provided permission to cite have been excerpted in this article. The paper also relies on the full set of Tribal codes to generate aggregate data concerning the timing and rates of adoption of culturally infused laws.

5. Evidence of Indigenization

5.1. Tribal Code Examples: Purposes

Tribal child welfare codes typically begin with a section entitled “purpose” and may additionally or alternatively include a section entitled “policy,” “philosophy,” “values,” or “principles.” These sections lay out the nation’s intentions and aspirations with regard to children’s wellbeing and can be understood as the basis for the more specific rules provided in the remainder of the code. In general, Tribal nations incorporate their cultural preferences and prerogatives into “purposes” sections in three ways: through descriptions of their highest priorities for children; through statements that describe the interconnectedness between child wellbeing, family wellbeing, and nation wellbeing; and through more open-ended language that emphasizes the importance of children’s access to culture and of the Tribe’s own ways of raising children.

The Lac Courte Oreilles Band of Lake Superior Chippewa’s code offers an example of the first approach. The “policy” section of its code cites the nation’s highest priorities for its children:

It is the policy of the Tribe to strengthen family structures, to prevent family breakups, and to foster conditions favorable to the growth, spirit, culture, and individuality of each child. A child without knowledge of the past is directionless in the path forward; a child without a nurturing present is denied the strengths that lead to the future. It is the Tribe’s policy to favor preventive action over belated reaction, mediation over confrontation, counseling over lecturing, conciliation over punishment–but in all decisions made under this code the welfare of the child shall be the ultimate touchstone.9

The Fort Yuma Quechan Indian Tribe offers an example of the second approach. The “purpose” section of its juvenile code emphasizes the interconnectedness of child, family, and community wellbeing:

Recognizing that children are the most important resource of the Quechan Indian Tribe and that children are vital to the continuing existence of the Quechan Tribe, this Juvenile Code has been developed as a means of safeguarding the health, safety, welfare, and culture of the Quechan Tribe for all future generations. From time immemorial the Quechan people have flourished on their ancestral homeland by valuing unique Quechan culture and traditions, which include family and children. The purpose of the Juvenile Code is to ensure the future of the Quechan Tribe by establishing procedures and laws to protect the best interest of children and the Quechan Tribe. This Code shall be liberally construed to achieve this purpose.10

The “purposes” section of the Little Traverse

Bay Bands of Odawa Indians’ (Waganakising Odawa) code offers an example of both ideas (priorities for children and interconnected wellbeing):

Children are the Tribe’s most vital and cherished resource. The Tribe’s future depends on the health and well-being of its children, and the health and wellbeing of the Tribe’s children depends, in turn, on the health and wellbeing of their families. Children have a sacred right to receive the care and guidance necessary for their spiritual, emotional, mental, and physical development. Feeling pride from their identity as Odawak will help them grow into adult Tribal Citizens who are strong, healthy, and responsible. Accordingly, it is the policy of the Tribe to ensure a safe and appropriate physical and emotional environment that will protect the health, safety, and development of all children; to compel the parent or custodian of a child to provide a proper environment for the child; to facilitate changes or improvement in the home environment as necessary to provide a proper environment for the child; to establish a judicial process to protect the health and safety of children, including the provision of substitute care and supervision for children in need of care; and to protect a child’s identity and ties with the child’s family and the Tribal community. To achieve this, the Tribe recognizes that families have a right to meaningful assistance from the Tribe to achieve and maintain spiritual, emotional, mental, physical, and cultural health, except in aggravated circumstances… Accordingly, family preservation is the strongly preferred goal of the Tribe.11

The Agua Caliente Band of Cahuilla Indians’ code is instructive concerning the third approach to incorporating Tribal understandings of children’s wellbeing and development into a purposes statement. Several provisions in the “purposes” section of the Membership and Family Services title use broad language concerning children’s access to culture and Tribal ways of raising children:

(4) To preserve the opportunity for Indian children to learn about their culture and heritage, and to become productive adult members of the Tribal community, by experiencing their culture on an ongoing basis…

(9) To recognize and acknowledge the customs and traditions of the Tribe regarding child-rearing.

(10) To preserve and strengthen each child’s cultural and ethnic identity whenever possible by, for example, requiring visitation with extended family/Tribal Members, attendance at cultural events, and language classes, instead of leaving these practices up to the discretion of a guardian or conventional adoptive parent.12

These statements clearly prioritize the Band’s cultural practices without detailing exactly what those practices are. Numerous other Tribal codes in the NICWA collection include language identical or similar to one or all three of these purposes, which suggests there may be strategic value in the approach: a Tribe can create an internally and externally legible legal framework (a visible set of laws that both community members and outsiders can access and understand) that makes its own values paramount and gives precedence to culturally tailored approaches to raising healthy children while leaving these ideas to be clarified, as needed, in other parts of the code and in the services provided by community experts. Certainly, given the discussion of mimicry above, similarities across Tribes’ stated purposes in their child welfare codes could be a product of happenstance and path dependence rather than of strategy. But if so, this is path dependence with an opposite result. As Tribes seek to revise their codes to better reflect their values, copying from other nations’ codes leads to the reproduction of statutory language that promotes Indigenization.

Beyond these more common ways of incorporating Tribal knowledges and preferences concerning child wellbeing and development into the “purposes” sections of Tribal child welfare codes, a focus on healing is a noteworthy aspect of several Tribal nations’ laws. For example, the juveniles subtitle of the Burns Paiute Tribe Family Law contains a “purpose and construction” section that includes this reminder: “3) to recognize that alcohol and substance abuse is a disease that is both preventable and treatable and to provide services for its prevention and treatment.”13 A provision in the “philosophy” section of the Fond du Lac Band of Lake Superior Chippewa’s Child Welfare Ordinance states that Fond du Lac Tribal Child and Family Services “recognizes that historical trauma is a significant factor contributing to child welfare problems among families and works to heal the negative impacts of all types of trauma.”14

5.2. Tribal Code Examples: Best Interests of the Child

Statements of purpose in Tribal nation child welfare codes support the Indigenization of child welfare systems through the broad guidance they provide; other sections may promote system Indigenization by providing specific directions for court personnel, program staff, and other community experts. Definitions and other explanations concerning the “best interests” of the child are one such example; definitions of “extended family,” discussed below, are another.

ICWA states that “it is the policy of this Nation [the United States] to protect the best interests of Indian children.”15 Appropriately, however, it is silent on what “best interests” are. Thus, when Tribal nations create their own child welfare codes, they have the opportunity to define or provide direction concerning their interpretation of “best interests.” Given the inherent connections between best interests and cultural concepts of children’s wellbeing, some Tribal nations use language in their codes to directly link these ideas.

For example, the Spirit Lake Nation’s Children’s Code defines “best interest of the child” as referring “to the medical, psychological, educational, physical, spiritual, cultural and emotional needs of a child which can reasonably be provided to ensure the best opportunity for a successful life.”16 In citing the considerations a Tribal judge should take into account when deciding whether to declare a child a ward of the Tribal court, the Chitimacha Tribe of Louisiana’s code states:

The next objective of the investigation shall be to determine facts that will assist the Chief Judge of the Chitimacha Tribal Court and the Chitimacha Tribal Council in determining the course of action that is in the best interests of the child, taking into account that continuing contact with the child’s extended Indian family and Indian heritage is a strong component of that interest.17

The Klamath Tribes’ code emphasizes that “the best interest and welfare of each child” gives “full consideration to the traditional and unique values of the Klamath Tribes.”18 And, the Tohono O’odham Nation code states “the nation recognizes that it is in the child’s best interest to ensure that fathers are provided an opportunity to play an integral role in their children’s upbringing and that a child born out of wedlock is not thereby deprived of his or her father.”19

Undoubtedly, any Tribal family services provider or Tribal family court judge would make decisions concerning the best interests of a child under a Tribal nation’s jurisdiction with reference to the concepts concerning child wellbeing and development that prevail in the community. Yet these provisions in Tribal law elevate the cultural aspects of best interests; they underscore that a strong sense of identity and belonging deriving from connection to family, extended family, community, and culture are intimately associated with a Tribal child’s health and wellbeing. Further, the provisions make clear to all that a given Tribal nation’s understanding of the “best interests of the child” may vary both from settler-colonial concepts and from other Tribes’ ideas.

5.3. Tribal Code Examples: Definition and Responsibilities of Family

According to ICWA, an “‘extended family member’ shall be as defined by the law or custom of the Indian child’s Tribe or, in the absence of such law or custom, shall be a person who has reached the age of eighteen and who is the Indian child’s grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, or stepparent.”20 This is a fairly expansive definition—at least by Western settler standards—which suggests that departures from it occur only when there is a substantial divergence between Tribal and settler understandings of “family.”

Examples show that these Tribe-specific definitions may include great-grandparents, godparents, “fictive kin”, and “aunties” in the Indigenous sense. In the Pueblo of Acoma’s Children and Family Law, “‘Extended Family’ or ‘kinship’ means the relationship that exists between a child and a relative of the child, a godparent, a member of the child’s Indian Tribe or clan or an adult with whom the child has a significant bond.”21 In the Red Cliff Band of Lake Superior Chippewa Children’s Code,

“Extended Family” shall include persons over 18 years of age who are a child’s brother, sister, step-parent, grandparent, aunt, uncle, first or second cousin, niece, nephew or any person of a proceeding generation as denoted by the prefix of great such as great-grandmother or great-grandfather. [And], “Fictive Kin” means extended family members who are not related by either blood or marriage such as godparents or close family friends.22

The definition in the Port Gamble S’Klallam Tribe’s Family Protection Code is perhaps most striking among these examples:

Extended Family: This term does not have a precise definition. Under Port Gamble S’Klallam custom, there are formal and informal ties which bind the community. Extended family ties are based on blood lines, marriage, friendship, and caring. All women in the community become “auntie” or “grandma” when they become a certain age, regardless of blood relationship. Although grandparents (including great and great-great), aunts, uncles, siblings, cousins, “in-laws” and “step” relations are all extended family, any member of the Port Gamble S’Klallam community who is reliable, responsible, loving, and willing to care for a child may be considered extended family.23

Further, many Tribal nations’ codes not only specify a definition of “extended family” but also indicate the community’s expectations of family members in looking after and contributing to the health and wellbeing of Tribal youth. For example, the Lummi Nation Children’s code states that:

A Lummi family extends beyond the immediate family to the child’s grandparents, aunts, uncles, first cousins, and other family members who have a close relationship with the child. Although a child’s parents have direct responsibility for the care of a child, the grandparents, particularly grandmothers, have an inherent responsibility to oversee the welfare of their grandchildren and to teach their grandchildren the Lummi culture and heritage. Aunts and uncles also have a responsibility to provide guidance and teaching to their nieces and nephews. Those inherent rights and responsibilities must be considered in decision-making under this Title.24

5.4. The Timing and Extent of Tribal Code Indigenization

Among the 16 Tribal nation codes cited in this paper, all were established or amended more than 20 years post-ICWA (from 1999 onward), and 10 (63%) were established or amended in the last 10 years (in the period 2015–2024). Of course, these codes were included because of the range of examples they provide of Indigenization. Statistics derived from the entire set of codes collected by NICWA provide a more accurate—although similar—picture. Among the 164 Tribal child welfare codes in the NICWA collection, the project team was able to determine a date of most recent activity for 147. Approximately 90% were created or updated more than 20 years post-ICWA, and at least 50% were created or updated in the period 2015–2024.25

Analysis of specific aspects of Tribal law provides even more evidence of the timing and extent of Tribal child welfare code Indigenization. For example, among the 164 Tribal child welfare codes collected by NICWA, 107 (65%) amend the ICWA definition of “extended family.” While it is not possible to determine the exact date at which most of these Tribally specific, culturally infused definitions were written into Tribal law, a cross tabulation of Tribal definitions with dates of change to Tribal child welfare codes overall is suggestive. Among the 95 Tribal child welfare codes with both a Tribal definition of “extended family” and a date of most recent change, 55 (58%) were established or amended in the period 2015–2024. In other words, not only do a large majority of the child welfare codes in the NICWA collection include a Tribally specific definition of “extended family,” a large majority of those definitions appear in codes that were recently created or updated.

While more study of timelines would be valuable, these developing findings support the understanding that efforts to Indigenize Tribal child welfare codes are accelerating—that a larger proportion of Tribal nations than ever before is seeking to reawaken, reclaim, and revitalize their ways of knowing, being, and doing concerning child wellbeing and to give weight to these ways in written Tribal law.

5.5. The Question of Implementation

As important as textual evidence of Indigenization in Tribal child welfare laws is, implementation is a necessary next step. Whether or not and how laws are implemented—including what practice model is developed, what policies are created, what standard operating procedures staff follow, and what relationships a Tribe develops with state courts and services agencies—are critical aspects of standing up systems that carry out the intent and spirit of law. For example, proper implementation of the Port Gamble S’Klallam Tribe’s culturally infused child welfare laws led to system transformation and the creation of an ecosystem that draws on community and parent strengths to improve child wellbeing (see Miller et al. 2022, among others). The Salt River Pima-Maricopa Indian Community’s Social Services agency’s collaborative work to prevent foster care and support families is also indicative of the way that implementation of an Indigenized Tribal code supports system change (Center for Health Care Strategies & Casey Family Programs 2024). To date, however, there are few other examples in the literature of how Tribal nations have built on their codified Tribal law to create systems of care that wrap services and supports around families, which suggests that this is an important area for future research.

6. Discussion

As evidenced by the apparent increasing amount and pace of cultural tailoring in Tribal child welfare codes, Tribal nations are moving toward greater Indigenization of the systems they use to support children’s wellbeing. Reflection on these changes yields several lessons for Indigenous nations and, more generally, for other governments whose responsibilities include child welfare.

6.1. Invest to Support System Differentiation

The first lesson emerges from acknowledgement of the radically different goals of a system grounded in Indigenous culture. These differences are illustrated by an experience of one of the authors at the 41st annual Protecting Our Children Conference in Reno, Nevada in 2023. More than 80 elected Indigenous leaders and child welfare directors and staff, representing Tribal nations and First Nations across North America, attended the workshop “Good Child Welfare Governance Is Prevention: Strengthening the Leadership Role and Operation of Tribal Child Welfare Services.” After the presenter shared foundational information about the history of child protection, the roles of Tribal leadership in keeping children safe, and key elements of child welfare programs, the session turned to small group discussion. In one small group, a First Nations participant described the recent passage of Bill C-92, Canadian legislation affirming the rights and jurisdiction of Indigenous Peoples over child and family services. A U.S. Tribal nation leader asked, “What does your [nation’s] child welfare system look like?” The First Nations leader replied, “Why would we build a child welfare system? We want to build a child wellbeing system.” The Tribal nation leader, recognizing the unintentional bias in his question, agreed and rephrased.

In other words, given the opportunity for self-determination over child welfare, Indigenous nations will build systems significantly different from those currently produced by the settler state. The orientation towards comprehensive child wellbeing and emphasis on healing, nurturing, and family preservation will manifest systems that are decidedly broad in scope, even compared to settler child welfare systems focused on prevention. System design will draw on ancestral wisdom—found in creation stories, ceremonies, and traditional teachings passed down by elders and knowledge keepers, through experiences on the land, and from wildlife, plants, and medicines—about how communities raise safe, healthy, spiritually strong, and interdependent children who are able to take care of themselves, other community members, and their environment. And, implementation will engage formal program staff, extended family, fictive kin, and Tribal nation citizens broadly in their collective responsibility to nurture and protect children.

These “new” systems require the development of appropriate services; changes in service provider roles, job titles, and training; stronger connections between formal and informal system elements (e.g., between social workers and grandparents, godparents, and elders and with natural helpers and healers); and different relationships with state systems. The very practical lesson at the heart of this discussion of differences is that follow-through on the creation of a Tribal nation child wellbeing system requires proper resources—both tangible and intangible. It requires financial resources for program development, operations, and staff training (among other needs); diplomacy to engage in the necessary negotiations with settler governments and within Tribal governments (especially if desired partner programs have become siloed or if politics have been allowed to intrude on the operation of nurturing networks); and patience and grace to address (and as needed, re-address) the effects of structural factors that pull system components toward settler ways.

6.2. Mind the Connections Between Law and Implementation

The brief review of Tribal code components and “the question of implementation” offered above suggests that Tribal law can play an important role in overall Tribal child welfare system reform: the choices a nation makes in their laws should cascade down to all other parts of their child welfare system, which means that attention must be paid to all the connections and synergies among law, policy, programs, and services. Thus, the second lesson is actually a set of lessons which draws on themes of NICWA’s technical assistance to Tribal nations engaged in developing or improving their child welfare systems.

Determine what really belongs in the code. NICWA advocates that Tribal laws and policies be culturally based and community driven (Cross and Simmons 2017), or as some Tribal nations say, “a law for us by us.” But balancing interests is important in every facet of the lawmaking process. It is important for laws to clearly exercise Tribal authority but also provide scope for program or service provider discretion. To the extent that codes draw on Tribal cultures, values, and practices, and are intended as a means of communication with both “outsiders” (e.g., partner governments) and “insiders” (nation citizens), Tribes must decide what they feel comfortable sharing about their worldviews, and what should and should not be public information. Child welfare codes should be comprehensive, but Tribal leaders, program managers, and Tribal citizens also must recognize that it is impossible for law to anticipate every situation. Lawmakers should provide more definition if required and more flexibility where needed, so that laws effectively guide service delivery, court decision-making, and the experience of Tribal families with the system—and vice versa. Finally, access to certain funding streams may dictate or constrain some Tribal laws and policies and/or require changes in how Tribal systems operate. These matters, in particular, require careful consideration of the spirit, intent, and impact of the requirements and skillful navigation of opportunities—although a Tribal nation should forgo funding that requires them to do something they see as untenable or prevents them from doing something they see as necessary.

A concrete example is that after decades of Tribal advocacy, the 2008 Fostering Connections to Success and Increasing Adoptions Act (P. L. 110-351) granted Tribal nations direct access to the Title IV-E Foster Care and Adoption Assistance entitlement program authorized under the Social Security Act, the single largest federal child welfare funding stream. The U.S. Children’s Bureau interpreted the law to require Tribes to include a provision allowing for the termination of parental rights (TPR) in their codes in order to be eligible for funding. Philosophically, many Tribes are opposed to TPR, as they favor maintaining the relationship between children and their parents whenever possible and using permanent placements (such as Tribal customary adoptions) that do not require severing the child and family relationship. This TPR requirement was a barrier to Tribes in accessing funding, with some opting out of funding because they were not willing to allow the federal government to dictate aspects of their Tribal law. Fortunately, the federal government revised its position in 2015, reinterpreting the law to allow for Tribal discretion concerning TPR.26

Put succinctly, these issues require Tribes to determine what really belongs in their codes, what is best left for policies and procedures, and what should be left out of written documents altogether.

Support comprehensiveness in system design and service delivery. While there is no aggregate data on children and families served by Tribal systems, the vast majority of families—and, in particular, the vast majority of Native families—that come into contact with state child welfare systems do so because of child neglect, not abuse (Children’s Bureau 2023, 2024). Child neglect frequently is related to structural barriers families face: lack of employment, lack of adequate housing, and lack of access to behavioral health services. While programs and services to address these family challenges often are disconnected and even siloed in both state and Tribal systems, Tribal laws can set expectations of close service collaboration to better meet families’ needs. Some codes, like the Fond du Lac Band of Lake Superior Chippewa cited previously, dictate a deeper (“philosophical”) connection among programs and services for the benefit of families. Thus, while their decisions may be heavily influenced by federal policy and funding stipulations, Tribal governments have the option to structure programs in silos or to do the hard work of creating easy-to-navigate pathways between programs and of identifying key entry points, so that wherever families come into contact with the system, they will be offered the broader help they need.27 In sum, Tribal law and policy can communicate the understanding that meeting families’ concrete needs, via strong connections among all components of the nation’s helping systems, is a desired way to prevent more intrusive intervention from the child welfare system.

Promote strong working relationships between political and program leaders. For Tribal nation child welfare laws to be meaningful and effective, they must lay the groundwork for respectful partnerships between Tribal elected officials and the program and judicial leaders who are responsible for implementing those laws. Codes can constructively guide collaborative service provision and court decision-making for the wellbeing of children, families, and the community—collaboration that engages Tribal leaders, directors and service providers within the child welfare system, directors and service providers from the many ancillary services on which effective child welfare practice relies, and court staff. For best results, however, complementary policies such as codes of conduct and conflict of interest rules for both service providers and elected or appointed Tribal officials may be necessary. Additionally, a community oversight board or committee, chartered by the Tribal nation, can ensure that program implementation is consistent with Tribal law and provide an accountability mechanism that keeps politics out of sensitive child and family issues.

Genuinely offer support for families. An important criticism of mainstream child welfare systems is that when a family receives helping services, it involuntarily opts into surveillance. By promulgating their own laws and policies, Tribes have the opportunity to provide an alternative framework, one that distinguishes family access to needed help from system surveillance and avoids surveillance harms. Providing universal services, from which all families benefit, and making the service delivery model, service array, and court decision-making process more explicit to the community, so that everyone knows where to seek help and what to expect in times of need, are two concrete ways to accomplish this. Tribal codes can complement these approaches by setting expectations for less moralistic and judgmental interactions when families seek help. For example, laws that acknowledge historical harm and trauma to families and that normalize and encourage healing, including access to culturally based parenting education, can be powerful signals of a Tribal nation’s intent to help, not hurt.28 This philosophy and intent are conveyed in how families experience the invitation for help: what it feels like and what is offered. Helpers can seek to understand what the child and their family have experienced to intentionally move them toward healing.

6.3. Consider the Application of Tribal Nation Perspectives in the Settler Context

In our view, it would benefit all U.S. families to be served by child welfare systems that more closely resemble the prevention-focused, networked, and nurturing systems that are re-emerging in Tribal nations. That said, sovereignty is a powerful tool for Tribal nations; it allows them to draw on deep wells of ancestral wisdom to set their own goals, design their own systems, and make their own laws—whereas state governments must work in a more restricted context. Nonetheless, there are several steps state child welfare systems can take to refocus on healing families and to promote holistic child wellbeing. For example, Tribal nations have achieved significant success in advocating for changes in federal law and in federal agency policy interpretations29 that allow for more flexible use of funds; their core argument has been that greater discretion advances service providers’ efforts to achieve the best possible outcomes for children and families. States could engage in similar conversations with federal funders, especially given data on the disadvantages of “stranger foster care” for all children (Lovett and Xue 2020). States also could create laws and policies for “one door” access, reduce the focus on judgement and surveillance, incentivize service and program collaboration (and even integration), and lean into opportunities to shift permanency toward care by extended family members (including “fictive kin”) through guardianship arrangements and open adoptions. Some states are taking these steps. While prevention-oriented programming can be expensive, so too, is maltreatment: the average lifetime cost per victim of nonfatal abuse is at least $830,928 (2015 dollars), with even higher costs to society from fatal maltreatment and in the aggregate (Peterson et al. 2018). Moreover, Tribal nations can testify that they have achieved some of their greatest successes by thinking carefully about how funding streams and human services programs fit together to meet overarching goals for thriving communities. For individual actors, however, the change may be quite simple: it requires adopting a bias toward keeping families whole.

7. Concluding Thoughts

Tribal nation laws are a defining component of Tribal nation systems that support child, family, and community wellbeing. While this research effort shows that at least 164 Tribal nations have adopted children’s codes, the ideal situation would be for all 574 federally recognized Tribal nations to have their own child welfare laws—and for each of those codes to be fully Indigenized. The effort will require each Tribal nation to determine how it wishes to embed its values, teachings, worldviews, and practices into its child welfare laws and to find ways to increase understanding, among Tribal citizens and among the nation’s non-Indigenous partners, of Tribal child welfare law. To achieve these outcomes, some Tribal nations may need to develop new processes for engaging Tribal citizens in law development and for sharing laws with the Tribal and general publics. Once laws have been drafted and communicated, the next challenge is implementation, in which human services experts, elders and other culture bearers, extended family members, Tribal elected and appointed leaders, and still others have responsibilities to fulfill within these renewed Indigenous systems. The entire process—from drafting to implementation—will require financial and human resources. Tribal nations also will need additional funding and the flexibility to determine its highest impact use in Tribal child wellbeing programs (e.g., the flexibility to fund culturally based services).

There is significant room for research, policy analysis, and informed advocacy to assist Tribal nations in this ongoing transition. This paper makes an initial contribution by sharing some useful information with Tribal nations about other Tribes’ codes. It demonstrates how much can be learned from comparative analysis—and suggests that further analysis of the NICWA Tribal code collection could usefully inform the development of Tribal child wellbeing law, policies, practices, and programs.

For example, in which other provisions of Tribal codes might one find a range of examples of Indigenization? Which codes truly stand out as unique? Are there examples of any provisions in any codes where Tribes clearly frame their choice as in opposition to state law (“we’re not doing that!”)? Are there identifiable correlations between the volume or types of federal funds available to Tribal nations over time and the language of Tribal codes? What examples are there of U.S. Tribal nations’ community engagement processes for lawmaking? And, what do Tribes involved in making changes to their laws and processes most need to know?