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Native peoples have always defined family structures beyond the frameworks of Western legal and social systems. In Native communities, family is defined through an expansive web of relationships, including aunties, uncles, cousins, and grandparents, all of whom are everyday participants in a child’s life. This approach to kinship has shaped Native child-rearing and family and community structures for generations, and as state child welfare systems have increasingly intervened in Native families, Tribal Nations have responded by codifying kinship directly into law, reclaiming and protecting it as both a cultural practice and a legal right.

Native Kinship Systems

In Native families, children are often raised alongside cousins and other relatives who are considered siblings, despite not having the same parents. This is not an informal or coincidental arrangement. Rather, it is a kinship system encompassing clan relationships and cultural practices that include blood relatives, extended family members, and non-blood relatives. Responsibility for a child’s well-being is distributed across this network by design, reflecting a communal model of care that stands in contrast to the more narrowly defined nuclear family.

Kinship & Native Child Removal

Kinship in Tribal communities has been a longstanding practice, but it has not remained untouched by United States law and policy. With the nuclear family model embedded in U.S. law, state child welfare systems began to view Native kinship networks as informal and irrelevant to child placement. By 1978, 85 percent of American Indian and Alaska Native (AI/AN) children were removed from their homes and placed outside their families and communities, even when fit and willing relatives were available to care for them.¹

This pattern of removing Native children from their communities paved the way for the creation of the Indian Child Welfare Act (ICWA), which required AI/AN children to be placed with family or community members whenever possible.

Yet even with ICWA in place, AI/AN children remain four times more likely to be removed by state child welfare systems than non-Native children with comparable circumstances.²

Codification of Kinship in Tribal Communities

In response to the overrepresentation of Native children in state foster care systems, many Tribal Nations have been codifying their kinship systems to Tribal law. By creating legal definitions that reflect their cultural practices and traditional social systems, they are protecting their children and preventing family and community separation.

        The Oglala Sioux Tribe codified its understanding of kinship through the Child and Family Code: Wakanyeja na Tiwahe ta Woope, which provides definitions of tiospaye, and tiwahe.

        As the code explains, “the root of Lakota social structure is the tiospaye – extended family. Tiospaye are comprised of tiwahe, immediate families, as well as individuals adopted through formal ceremony.”³ The code then provides an extensive definition of who counts as extended family for the purposes of child placement:

        “A) The paternal and maternal grandfather and grandmother; (B) Siblings of the grandparents; (C) Father and mother; (D) Paternal and maternal uncle and aunt; (E) Brother and sister; (F) The spouses of persons listed in (A) through (E); (G) Any adult person legally adopted in (A) through (E); and (H) Any adult member of the child’s tiospaye, or other adult person adopted by the child’s tiospaye as a relative through a formal ceremony.”

Similarly, the Osage Nation has defined “relative” and “traditional custodian” in its Children’s Code:

        “QQ. “Relative” means a grandparent, great-grandparent, brother, sister, aunt, uncle, nephew, niece, cousin or any other person related to the child within the fourth degree of consanguinity.

        ZZ. “Traditional custodian” means those relatives of the child other than the parents, who by force of the traditions, customs and common law of the Osage Nation have the rights, duties and responsibilities of assisting the parents in rearing the child and providing for his or her support or may act in loco parentis by virtue of custom and tradition.”⁴

By incorporating clear, expansive definitions of kinship ties into law, Tribal codes give Tribal courts multiple placement options for children in need of care while allowing them to remain in their communities.

Conclusion

Tribal family codes such as these not only allow Tribal Nations to reclaim authority over child welfare decisions as an expression of Tribal sovereignty, but they also ensure Tribal Nations can continue to practice communal care, with traditional kinship systems functioning as enforceable law.

1. National Indian Child Welfare Association, (2018). Setting the Record Straight: The Indian Child Welfare Act. PDF. NICWA. https://www.nicwa.org/wp-content/uploads/2025/02/Setting-the-Record-Straight-2018.pdf
2. National Indian Child Welfare Association, (2018). Setting the Record Straight: The Indian Child Welfare Act. PDF. NICWA. https://www.nicwa.org/wp-content/uploads/2025/02/Setting-the-Record-Straight-2018.pdf
3. Sekaquaptewa, P., Abananti , A., White Eagle, M., & Halpern-Beetso, C. (2015, March). Chapter 30: Integrating Culture, customs, traditions, and ... (pp 367-368) Tribal Court Clearinghouse, a project of the Tribal Law & Policy Institute. https://www.tribal-institute.org/download/jjg/Chapter%2030.pdf
4. 2 ONC § 2-101(QQ, ZZ)