Indian Child Welfare Act

The Indian Child Welfare Act of 1978 (ICWA) ((Pub. L. 95–608, 93 Stat. 3071, enacted November 8, 1978), codified at 25 U.S.C. §§ 1901–1963.) is a Federal law that governs jurisdiction over the removal of Native American (Indian) children from their families.

Overview of ICWA

General

ICWA gives tribal governments a strong voice concerning child custody proceedings which involve Indian children, by allocating tribes exclusive jurisdiction over the case when the child resides on, or is domiciled on, the reservation, or when the child is a ward of the tribe; and concurrent, but presumptive, jurisdiction over non-reservation Native Americans’ foster care placement proceedings.

Preservation of Indian Culture

File:Assmilation of Native Americans.jpg

Assimilation of Indians into U.S. Culture

History

ICWA was enacted in 1978 because of the high removal rate of Indian children from their traditional homes and essentially from Indian culture as a whole. Before enactment, as many as 25 to 35 percent of all Indian children were being removed from their Indian homes and placed in non-Indian homes, with presumably the absence of Indian culture. In some cases, the Bureau of Indian Affairs (BIA) paid the states to remove Indian children and to place them with non-Indian families and religious groups. Testimony in the House Committee for Interior and Insular Affairs showed that in some cases, the per capita rate of Indian children in foster care was nearly 16 times higher than the rate for non-Indians. If Indian children had continued to be removed from Indian homes at this rate, tribal survival would be threatened. Congress recognized this, and stated that the interests of tribal stability were as important as that of the best interests of the child. One of the factors in this judgment was that, because of the differences in culture, what was in the best interest of a non-Indian child were not necessarily what was in the best interest of an Indian child, especially due to extended families and tribal relationships.

As Louis La Rose (Winnebago Tribe of Nebraska) testified:

"I think the cruelest trick that the white man has ever done to Indian children is to take them into adoption court, erase all of their records and send them off to some nebulous family ... residing in a white community and he goes back to the reservation and he has absolutely no idea who his relatives are, and they effectively make him a non-person and I think ... they destroy him."

Various other groups also played a factor. The Church of Jesus Christ of Latter-day Saints (LDS Church) had an Indian Placement Program that removed Indian children from their tribes and into church members homes. By the 1970s, approximately 5,000 Indian children were living in Mormon homes. The lack of knowledge of most social workers also played into the high removal rates. Most social workers are conditioned by the "best interest of the child" as outlined by Beyond the Best Interests of the Child (Second Edition), which advocates bonding with at least one adult as a parent figure rather than taking into consideration the tribal culture of the extended tribal family. The common Indian practice of leaving a child with an extended relative was viewed as abandonment by these well-intentioned social workers, but was viewed as perfectly normal by tribal members.

During congressional consideration, at the request of Native American advocacy groups, opposition was raised by several states, the LDS Church, and several social welfare groups. The bill was pushed through by Representative Morris Udall of Arizona, who lobbied President Jimmy Carter to sign the bill.

Congress’s overriding purpose in passing the ICWA was to protect Indian culture and tribal integrity from the unnecessary removal of Indian children by state and federal agencies. Awareness of the issues facing American Indian children came about from the advocacy and research by the Association on American Indian Affairs. Congress reasoned that “there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children.”

Jurisdiction

Minimum Standards

ICWA sets the minimal Federal standards for nearly all Indian child custody proceedings, including adoption, voluntary and involuntary termination of parental rights, and removal and foster care placement of Indian children, but excluding divorce and child delinquency proceedings. ICWA provides that state courts have no jurisdiction over the adoption or custody of Indian children residing within their own tribal reservation. An "Indian child" is “any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.”

ICWA applies to a "child custody proceeding" involving an Indian child. The term "child custody proceeding" involves: (i) "foster care placements", where the child has been placed in a foster home, and the parent cannot have the child returned upon demand, but where parental rights have not been terminated; (2) terminations of parental rights; (3) "preadoptive placements", which means placing the child in a foster home after the termination of parental rights, but before or instead of an adoption; and (4) adoptions.

ICWA does not cover child custody hearings during divorce proceedings. Nor does ICWA cover cases of child delinquency where the child has done something that would be considered a crime if done by an adult. Because Indian tribes play a major part in the upbringing of Indian children that is significantly different than that of the parents, the ICWA gives important jurisdictional powers to Indian tribes in order to preserve the Indian culture. Tribal courts hold either exclusive jurisdiction or concurrent jurisdiction dependent on several factors.

Exclusive tribal jurisdiction

Under ICWA, an Indian tribe has exclusive jurisdiction over an Indian child who resides or is domiciled within the tribe's land. This includes both reservation land, other tribal lands that are held in trust by the Federal government for the benefit of a tribe or individual, or held by a tribe or individual subject to a restriction by the United States against alienation. The last two describe tribal lands such as those in Oklahoma that were transferred to individual Indians under various laws. The Indian tribal courts also have exclusive jurisdiction over Indian children who are wards of the court or tribe, regardless of their location.

Concurrent jurisdiction

Concurrent jurisdiction is shared jurisdiction between the tribal courts and the state courts. In all cases that the tribal court does not have exclusive jurisdiction, they have concurrent jurisdiction. These cases would be custody proceedings involving Indian children that don't reside or are not domiciled on the tribal lands (such as someone born off the reservation and whose parents don't live on the reservation). In these concurrent decisions, the ICWA expresses a preference for tribal jurisdiction in Indian child custody proceedings.

Procedures

Maintaining tribal relationships

Notification and Rights

In an involuntary proceeding, the state must notify both the parent(s) or custodian(s) and the child's tribe at least 10 days prior to the proceeding. Emergency proceedings may follow state law, but proceedings after that are controlled by ICWA. If the state cannot determine who the parent or the tribe is, then the state is required to notify the Secretary of the Interior. Notification is by registered mail, return receipt requested, and the parties notified have the right to an additional 20 days to prepare prior to the proceeding. Failure to provide such notice can cause a jurisdictional defect that may result in any such proceeding to be overturned.

The child may be provided an attorney, and the parents are entitled to one if they are indigent and cannot afford one. If the state does not have provisions for providing indigent parents an attorney, the Secretary of the Interior is to pay the attorney expenses.

All of the parties have the right to examine all documents and reports related to the proceeding.

In a removal case, the party seeking the removal (normally Child Protective Services or similar agency) is required to make active efforts to provide the parent or custodian with remedial and rehabilitative services designed to prevent the removal of the child from the Indian family. The "active effort" requirement also applies even if the party seeking removal is a private party, as in a private party adoption. The child may not be temporarily removed unless there is a likelihood of "serious emotional or physical damage" to the child if they remain in the home.

Intervention

The tribe and parents or Indian custodian of the Indian child have an unqualified right to intervene in a case involving foster care placement or the termination of parental rights . The intervention may be at any time, and not just at the beginning of the proceedings. This right does not apply to pre-adoption or adoption proceedings unless it also includes the termination of parental rights.

Transfer to Tribal Court

Motion to Transfer

In a foster care or termination of parental rights case where the tribe and the state exercise concurrent jurisdiction, the tribe may move to transfer the case from the state court to the tribal court. The ICWA technically allows transfer to the tribal court at any time in the proceeding, but state courts vary on how they view transfer requests after state court proceedings are well into the adjudication process. In some cases the state will look to the Adoption and Safe Families Act to deny such a transfer based on that law's time standards. After a motion for transfer has been made, there is a presumption that the tribal court will receive the case and the state court is required to make the transfer unless one of three factors is present.

Objection to Transfer

A biological or adoptive parent, whether Indian or non-Indian may object to and veto a proposed transfer of a case to tribal court. A prospective parent, the Indian child, or another party may object, but may not veto a transfer, and those objections would be covered under the "good cause" provision. In the event that a parent vetoes the transfer, the case will remain in state court. This is most commonly seen where one of the parents is non-Indian.

Declination by Tribal Court

The tribal court may decline to accept the transfer of a case from a state court. An example is where the parents move to transfer the case, but the tribe declines to accept jurisdiction due to a lack of funding for programs that would support the child and the parents at the tribal level that are present at the state level. Note that a tribal court may not be a traditional tribunal, but may be any other administrative body empowered by the tribe to act on child custody matters.

Good Cause

A state court may decline to transfer a case for "good cause," but that term is not defined in the ICWA. The BIA has issued an advisory set of guidelines for state courts to use in determining "good cause." While these guidelines are not mandatory, many states have adopted them, and they include:

• No tribal court as defined by the ICWA,
• The proceeding was at an advanced stage when the transfer request was made, and the party asking for the transfer did not request the transfer promptly after receiving notice of the proceeding,
• The Indian child is over the age of 12 and objects to the transfer,
• It would cause undue hardship on the parties and/or witnesses to travel to a tribal court, or
• The parents of an Indian child over the age of 5 are not available and the child has had little or no contact with the tribe.

Existing Indian Family Exception

History of the Exception

In 1982, the Kansas Supreme Court held that the ICWA " was not to dictate that an illegitimate infant who has never been a member of an Indian home or culture, and probably never would be, should be removed from its primary cultural heritage and placed in an Indian environment over the express objections of its non-Indian mother." Under the facts of the case, the court stated that the ICWA did not apply unless the child was part of an "existing Indian family unit." The court denied the Kiowa Tribe of Oklahoma the right to intervene in the case, stating that the ICWA did not apply. The court also held that even if the ICWA did apply, the trial court committed no reversible error because the non-Indian mother would have objected to the transfer of the case to a tribal court and, thus, defeated the transfer.

From the Kansas Supreme Court case sprang a body of jurisprudence around the "existing Indian family" exception to ICWA. In the years following the Kansas Baby Boy L. case, approximately half of the states adopted or expanded upon this "existing Indian family" exception, despite the fact that the language appeared no where the text of the ICWA.

Subsequent to the Kansas Baby Boy L. case, in 1989, the United States Supreme Court heard the only ICWA case that it has issued an opinion on to date in Mississippi Band of Choctaw Indians v. Holyfield. 490 U.S. 30 (1989) Like the Baby Boy L. case, both parents in Holyfield consented to the voluntary termination of their parental rights and adoption of their infant by a non-Indian family. Unlike the parents in Baby Boy L., the mother in this case lived on the reservation both before and after the birth of the child off-reservation. The Supreme Court found that the child was "domiciled" on the reservation because its biological mother was domiciled on the reservation. Therefore, the exclusive jurisdiction of the tribal court under ICWA should have been invoked. The case was remanded to the tribal court for a custody determination three years after the child had been placed with non-Indian adoptive parents. Noting the potential disruption in the child's life, the Supreme Court noted that any potential harm could have been avoided if the parents and state court had not wrongfully denied the tribe its rights under ICWA.

While the Supreme Court did not consider the "existing Indian family" exception, some sources cite Holyfield as an implicit rejection of the exception. Other sources have noted that the Holyfield case is relied upon as support for both sides of the debate over the "existing Indian family" exception:

"Surprisingly, Holyfield has been relied upon by courts and parties both to support and reject the existing Indian family exception, which has been invoked in proceedings involving Indian children and families who are living off the reservation and who are, therefore, subject to state court jurisdiction concurrent with that of the tribal court."

As of 2010, Alabama, Indiana, Kentucky, Louisiana, Missouri, and Tennessee still use the "existing Indian family" exception. Alabama and Indiana have limited its application by further court decisions. Nineteen states have rejected the doctrine, either by court decision or statute, including Kansas, where the Kansas Supreme Court expressly overturned the Baby L. decision in In re A.J.S., stating:

"Given all of the foregoing, we hereby overrule Baby Boy L., (citation omitted), and abandon its existing Indian family doctrine. Indian heritage and the treatment of it has a unique history in United States law. A.J.S. has both Indian and non-Indian heritage, and courts are right to resist essentializing any ethnic or racial group. However, ICWA's overall design, including its "good cause" threshold in 25 U.S.C. 1915, ensures that all interests—those of both natural parents, the tribe, the child, and the prospective adoptive parents—are appropriately considered and safeguarded. ICWA applies to this state court child custody proceeding involving A.J.S., and the Cherokee Nation must be permitted to intervene."

Criticisms

Some critics have complained that the existing Indian family exception requires the state court to determine what it means to be an Indian child or an Indian family, by applying tests to determine the "Indian-ness" of the child. One such test involved evaluating if the child lived "in an 'actual Indian dwelling,' apparently thinking of a teepee, hogan, or pueblo." Another work notes that "state courts have taken it upon themselves to determine individuals' relationship with their tribes by examining such contacts as subscription to a tribal newsletter."

In her 1997 testimony before the Joint Hearing of the House Resources Committee and the Senate Committee on Indian Affairs, Assistant Secretary of the Interior Ada Deer (Menominee Indian Tribe of Wisconsin) stated:

"...we want to express our grave concern that the objectives of the ICWA continue to be frustrated by State court created judicial exceptions to the ICWA. We are concerned that State court judges who have created the "existing Indian family exception" are delving into the sensitive and complicated areas of Indian cultural values, customs and practices which under existing law have been left exclusively to the judgment of Indian tribes... We oppose any legislative recognition of the concept."

Foster Care Placement and Adoption

The ICWA covers the temporary placement of an Indian child in a foster home, a guardian or institution, but where parental rights have not been terminated.

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Although there may be some ambiguity concerning the first two exceptions, there is little when it comes to the good cause exception. Good cause can be defined as:

1) The request of the biological parents or the child when the child is of sufficient age. Both parents have to make this request in order for it to be valid. 2) The extraordinary physical or emotional needs of the child as established by testimony of a qualified expert witness. 3) The unavailability of suitable families for placement after a diligent search has been completed for families meeting the preference criteria.

The first good cause exception would apply to foster care placement proceedings because the parents have not terminated their rights and therefore can still act as a parent. In cases of Indian adoption, the parents have obviously given up their parental rights or they have been terminated.

The second would become involved when the child is in need of "highly specialized treatment services that are unavailable in the community where the families who meet criteria reside."

The third good cause exception cited by the guidelines would be in reference to "a diligent search." A diligent search would be defined as "at a minimum, contact with the child's tribal social services program, a search of all county or state listings of available Indian homes, and contact with nationally known Indian programs with available placement resources."

Other instances of good cause would be: bonding with the proposed adoptive parents (so as to not actively disrupt the child's life), the need for stability, the willingness of the adoptive family to expose the child to his or her Indian culture and traditions, the child's lack of ties to the tribe. The last reasoning is up for discussion as it obviously serves as an active threat to the tribe.

The Indian child's tribe may request the transfer of a child's custody proceeding from a state court to the tribal court when an Indian child does not reside or have domicile upon tribal lands. ICWA states this transfer must be made, unless either parent objects or “good cause” exists not to make the transfer. The term domicile can be defined as the place the Indian child's parents are living during the time the Indian child in question was born.

By defining domicile, courts have been able to rule out ambiguity when it comes to where the Indian child is domiciled. The main conflict that would come into question would be if the child in question was born outside of the federal tribal lands (such as the reservation). For example if Indian parents took care to have their child off of the reservation, the ICWA still has jurisdiction over the placement of that child when it comes to the adoption of that child, as opposed to state law.

If a transfer is denied and parental rights are terminated, ICWA indicates where an Indian child is to be placed: with extended family first; then other members of the tribe; then other Indians who are not members of the tribe; and finally non-Indians. As with transfers, the ICWA includes a "good cause" exception to the statutory placement preferences, and state courts are split in their interpretation of good cause. (§ 1915)

ICWA allows parents of Indian children to voluntarily waive parental rights to a court “of competent jurisdiction,” i.e., either tribal court when the child is domiciled on tribal lands or state court when the child does not and the tribe has not successfully transferred the case to the tribal court. ICWA requires that the parents be informed in writing about the full implications of the ICWA. It also decrees that the termination cannot be made prior to birth or within ten days after birth. The ICWA further allows either parent to withdraw consent of the adoption up until a final decree of termination of rights or adoption is issued. Finally it allows the birth parents to petition the court to vacate the adoption within two years if the adoption decree was made under fraud or duress. (§ 1913)

In placement of Indian children, the act allows adoption priority to be given in the order of the child's extended family, the child's tribe members, and then to Indian families in general.

Another provision requires the Federal government, states and other tribes to give “full faith and credit” to the decisions made by a tribal court. (§ 1911). The ICWA also provides funding for child and family programs, such as family assistance, educational programs and legal council in ICWA litigation. Further, the ICWA allows tribes under Public Law 280 to exercise child custody jurisdiction even though they would not typically enjoy this jurisdiction. The final clause of the ICWA states that even if the courts find a portion of the ICWA unconstitutional, the full body itself would not be deemed unconstitutional. (§ 1963)

Tribal guidelines towards becoming an adoptive family of an Indian child can be liberal. For example, the Cherokee Nation, has guidelines as follows: A person can become an adoptive parent even if that person is a single adult, divorced, does not own his or her own home, lives with other family members, is a working mother, is over 40 years of age, earns a modest income and/or has a disability. These guidelines open up the doors to so many more adoptive families and allows Indian children to find good homes.

Caselaw regarding ICWA

The first Supreme Court case dealing with ICWA was the 1989 case Mississippi Band of Choctaw Indians v. Holyfield (490 U.S. 30, 109 S.Ct. 1597). This Court ruled that the ICWA gives the tribal court exclusive jurisdiction over a case where the parent was domiciled on the reservation, no matter what their own personal desires are in the custody case.

ICWA in popular culture

Barbara Kingsolver's 1994 novel Pigs in Heaven deals with ICWA and its impact on Native American children and their adoptive parents.

See also

• Adoption and Safe Families Act
• Association on American Indian Affairs
• Child custody
• Mississippi Band of Choctaw Indians v. Holyfield
• Uniform Adoption Act
• Uniform Child Custody Jurisdiction And Enforcement Act

References

• Canby, William C. Jr. (2004). American Indian Law in a Nutshell. Eagan, MN: West Publishing. {{cite book}}: Cite has empty unknown parameter: |coauthors= (help)
• Goldstein, Joseph (1979). Beyond the Best Interests of the Child (Second Edition). New York: Simon & Schuster. ISBN 0-02-912200-7. {{cite book}}: Unknown parameter |coauthors= ignored (|author= suggested) (help)
• Johnson, Kevin R. (2003). Mixed Race America and the Law. New York: New York University Press. {{cite book}}: Cite has empty unknown parameter: |coauthors= (help)
• Jones, B.J. (1995). The Indian Child Welfare Act Handbook: A Legal Guide to the Custody and Adoption of Native American Children (Second Edition). Chicago: American Bar Association. {{cite book}}: Unknown parameter |coauthors= ignored (|author= suggested) (help)
• Josephy, Alvin M. (1999). Red Power: the American Indians' Fight for Freedom (Second Edition). Lincoln, NE: University of Nebraska Press. {{cite book}}: Unknown parameter |coauthors= ignored (|author= suggested) (help)
• Lemont, Eric David, ed. (2006). American Indian Constitutional Reform and the Rebuilding of Native Nations. Austin: University of Texas Press. {{cite book}}: |first= has generic name (help); Cite has empty unknown parameter: |coauthors= (help)CS1 maint: multiple names: authors list (link)
• Lowe, Nigel V. (1996). Families Across Frontiers. The Hague, The Netherlands: Martinus Nijhoff Pub. ISBN 90-411-0239-6. {{cite book}}: Unknown parameter |coauthors= ignored (|author= suggested) (help)
• NARF Staff (2007). A Practical Guide to the Indian Child Welfare Act. Boulder, CO: Native American Rights Fund. ISBN 978-0-9794099-1-2. Retrieved April 14, 2010. {{cite book}}: Cite has empty unknown parameter: |coauthors= (help)
• Wilkinson, Charles F. (2005). Blood Struggle: The Rise of Modern Indian Nations. New York: W.W. Norton & Co. {{cite book}}: Cite has empty unknown parameter: |coauthors= (help)

External links

• Text of the Indian Child Welfare Act of 1978