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The Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et. seq.) is a Federal law that governs the jurisdiction over adoption and custody of American Indian children.[1]

Contents

Overview of ICWA

The ICWA gives tribal governments a strong voice concerning child custody proceedings which involve Indian children by allocating tribes sole jurisdiction over the case when the child is domiciled on the reservation; and concurrent, but presumptive, jurisdiction over non-reservation Native Americans’ custody proceedings.[2]

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. ICWA states that state courts have no jurisdiction over the adoption or custody of Indian children residing within their own tribal reservation.[3] Section 1903 defines Indian child as “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.”[4]

Origins of ICWA

Preservation of Indian Culture

The ICWA was originally enacted by Congress in 1978 due to the high removal rate of Indian children from their traditional homes and essentially from Indian culture as a whole. Before the bill was enacted, as many as 25-35 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. If Indian children continued to be removed from Indian homes at this rate, true Native American Tribal survival would continue to be threatened. The children were being raised outside of Indian culture and soon would cease to be known as true Indians. Instead, they would be known as assimilated into other non-Indian cultures.

Indian children were also not being placed in conducive Indian cultural environments due to the inability of the social workers to place them in homes that were economically stable in accordance with the state regulations. In addition to that, many Indian parents were being taken advantage of because they lacked adequate legal representation in child custody proceedings and were unknowingly convinced to waive their parental rights.

Jurisdiction

ICWA applies to a "child custody proceeding" [5] involving an Indian child. "Child custody proceeding" is a broad term generally covering civil proceedings where a child is taken into state custody as a result of abuse or neglect by the parents or custodian.

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. [6]

The ICWA does not cover child custody hearings during divorce proceedings. (§ 1911) 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.[1]

The ICWA applies to the placement of Indian children in foster care; to any action "resulting in the termination of the parent-child relationship" (in cases where the child will become a ward of another family); to a pre-adoptive placement; and to an adoptive placement, which refers to the final placement for adoption or any action that may lead up to adoption.[1]

Pre-adoptive placement refers to the "temporary placement of an Indian child in a foster home or institution after the termination of parental rights but prior to or in lieu of adoptive placement."[1]

Because Indian tribes play a major part in the upbringing of Indian children that is significantly different than that of the parents, ICWA gives important jurisdictional powers to Indian tribes in order to preserve the Indian culture. In all cases, tribal jurisdiction is not given exclusively, but rather ICWA gives the Indian tribe the power to intervene in state court proceedings that concern Indian children.[1]

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Exclusive tribal jurisdiction

Under ICWA, an Indian tribe has complete jurisdiction over an Indian child who resides or is domiciled with the tribe's land. The Indian tribal courts also have exclusive jurisdiction over Indian children wards of the court.[1]

Concurrent jurisdiction

Concurrent jurisdiction is shared jurisdiction between the tribal courts and the state courts. There are also certain cases where the state courts have shared jurisdiction with the tribal courts. 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). In these concurrent decisions, the ICWA expresses a preference for trial jurisdiction in Indian child custody proceedings.[1]

In addition to that, state court decisions that involve Indian child foster care proceedings or that involve the termination of parental right are also in question. For these particular proceedings that start out in the state courts that may need to be transferred tribal courts may only be transferred by the petition of either parent, the Indian custodian of the child in question or the tribe of the child in question. The only way that this transfer would be denied when petitioned by one of the aforementioned parties would be if one of the child's parents objects, the tribal court says that they have no jurisdiction of the court proceeding or good cause is absent, therefore forcing the court to deny the transfer exists.[1]

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. [7]

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.

Best Interest: theory that emphasizes the bonding of the Indian child in question with at least one adult in the foster home and that adult is psychologically seen by the child as his/her psychological parent.[8]

The Indian child's tribe may request the transfer of a child custody proceedings from a state’s 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. [1]

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.[1]

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.[9]

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)

Particularly with the Cherokee Nation, the guidelines towards becoming an adoptive family of an Indian child is as follows: If you are a single adult, are divorced, do not own your own home, you live with other family members, you are a working mother, you are over 40 years of age, you earn a modest income and if you have a disability. These guidelines open up the doors to so many more adoptive families and allows Indian children to find good homes.[10]

Rationale for passage

Congress’s overriding purpose in passing this act was to protect Indian culture and tribal integrity from the unwanted 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 in the mid-1900s. Congress reasoned “there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children.” (§ 1902.)

The congressional hearing concerning ICWA heard of research by the Association on American Indian Affairs, which found that somewhere between 25 percent to 35 percent of all Indian children had been removed from their families and placed in foster or adoptive homes and institutions from 1969 to 1974 [1]. Further statistics showed that in some states, such as Minnesota, Indian children faced foster care placement sixteen times more often than their non-Indian counterparts. (1978 U.S.C.C.A.N 7531.)

Concern was expressed that such high adoptive rates in Indian children would negatively impact the individual children and the entire tribal community.[11]

Caselaw regarding ICWA

The first Supreme Court case dealing with ICWA was the 1989 case Mississippi Choctaw Indian Band 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.

The most significant ICWA case in recent years has been In Re Adoption of Cruzere (Wash. Ct. App. 2009). In Cruzere, the court addressed numerous issues related to ICWA and found that like Johnson v. M'Intosh 21 U.S. (8 Wheat.) 543 (1823), Indians cannot have full possession of children or land.[Citation Needed]

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.

References

  • Canby, William C. Jr. "American Indian Law in a Nutshell" (Thomson West 2004), p 195. ISBN 0314146407
  1. ^ a b c d e f g h i j http://www.narf.org/icwa/federal/lh/icwa_crs_rpt_2007.pdf
  2. ^ (25 U.S.C § 1911)
  3. ^ Canby, p. 196
  4. ^ § 1903. Definitions
  5. ^ 25 USC sec 1903(1)
  6. ^ 25 U.S.C. sec. 1903(1)
  7. ^ Jones, B.J. The Indian Child Welfare Act Handbook, Second Edition: A Legal Guide to the Custody and Adoption of Native American Children (American Bar Association, 2008) p.139-141. ISBN 9781590318587
  8. ^ Jones(2008)p.12 ISBN 9781590318587
  9. ^ Canby, p. 197
  10. ^ http://www.cherokee.org/Services/130/Page/default.aspx
  11. ^ Duthu,N (2008). "American Indians and the Law", p 150. ISBN9780670018574

External links

Other Relevant Articles
Native Americans in the United States [[2]]
Pan Indianism [[3]]
US Federal Native American Legislation [[4]]
Association on American Indian Affairs [[5]]
Uniform Adoption Act [[6]]
Illegal immigration to the United States [[7]]
Adoption [[8]]
Foster Care [[9]]
Child Custody [[10]]
Child Custody Jurisdiction and Enforcement Act [[11]]

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