⚖️Native American Legal Studies Unit 8 – Indian Child Welfare & Family Law

Historical Context

• Prior to the Indian Child Welfare Act (ICWA), a disproportionate number of Native American children were removed from their families and placed in non-Native homes or institutions
• Removal of Native children from their communities led to a loss of cultural identity, language, and traditional practices
• In the late 1960s and early 1970s, studies revealed that 25-35% of all Native American children were being placed in out-of-home care
  • 85% of these children were placed in non-Native homes or institutions
• The Association on American Indian Affairs (AAIA) conducted a study in 1969 and found that Native children were 13 times more likely to be removed from their homes than non-Native children in Minnesota
• Congressional hearings in the 1970s highlighted the widespread removal of Native children and the need for federal legislation to protect the rights of Native families and tribes

Key Legislation

• The Indian Child Welfare Act (ICWA) was passed by Congress in 1978 to address the widespread removal of Native American children from their families and tribes
• ICWA establishes minimum federal standards for the removal and placement of Native children in foster or adoptive homes
• The Act requires state courts to notify tribes when a Native child is involved in a child custody proceeding and to transfer jurisdiction to tribal courts when appropriate
• ICWA gives preference to placing Native children with extended family members, other members of their tribe, or other Native American families
• The Act also requires active efforts to prevent the breakup of Native families and to reunite children with their families or tribes whenever possible
• In addition to ICWA, other key legislation affecting Native children and families includes:
  • The Indian Self-Determination and Education Assistance Act of 1975
  • The Adoption and Safe Families Act of 1997
  • The Fostering Connections to Success and Increasing Adoptions Act of 2008

Tribal Sovereignty and Jurisdiction

• Tribal sovereignty is the inherent right of Native American tribes to govern themselves and their members
• ICWA recognizes the sovereign status of tribes and their authority over child custody proceedings involving their members
• Under ICWA, tribes have exclusive jurisdiction over child custody proceedings involving Native children who reside or are domiciled on the reservation
• When a Native child is involved in a state court proceeding, ICWA requires the state to notify the child's tribe and to transfer jurisdiction to the tribal court upon request, absent good cause to the contrary
• Tribes also have the right to intervene in state court proceedings involving their member children and to provide input on placement preferences
• The recognition of tribal sovereignty and jurisdiction in ICWA helps to ensure that Native children remain connected to their families, communities, and cultural heritage

ICWA Provisions and Requirements

• ICWA sets forth specific requirements for state courts and child welfare agencies in child custody proceedings involving Native American children
• The Act defines an "Indian child" as any unmarried person under age 18 who is either a member of a federally recognized tribe or eligible for membership and the biological child of a member
• ICWA requires state courts to notify a child's tribe when a child custody proceeding is initiated and to transfer jurisdiction to the tribal court upon request, absent good cause to the contrary
• The Act establishes placement preferences for Native children, prioritizing placement with extended family members, other members of the child's tribe, or other Native American families
• ICWA requires "active efforts" to prevent the breakup of Native families and to reunite children with their families or tribes whenever possible
  • Active efforts go beyond the "reasonable efforts" standard required in non-ICWA cases and may include culturally appropriate services and support
• The Act also sets a higher evidentiary standard for the removal of Native children from their homes, requiring "clear and convincing evidence" that continued custody by the parent or custodian is likely to result in serious emotional or physical damage to the child

Cultural Considerations

• ICWA recognizes the importance of cultural identity and connection for Native American children and families
• The Act seeks to protect the rights of Native children to be raised within their own families and communities whenever possible
• ICWA requires child welfare agencies and courts to consider the cultural and social standards of the child's tribe when making placement and other decisions
• The Act also emphasizes the importance of involving extended family members and tribal representatives in child custody proceedings
• Cultural competency training for child welfare professionals and court personnel is essential for effective implementation of ICWA
  • This includes understanding the historical context of Native child removal, the diversity of Native cultures and traditions, and the importance of tribal sovereignty and self-determination
• Culturally appropriate services and support, such as traditional healing practices and language preservation programs, can help to strengthen Native families and promote positive outcomes for Native children

Case Studies and Landmark Decisions

• Mississippi Band of Choctaw Indians v. Holyfield (1989): The U.S. Supreme Court held that the domicile of Native American children is determined by the domicile of their parents, and that tribal courts have exclusive jurisdiction over child custody proceedings involving children domiciled on the reservation
• In re N.B. (2009): The Colorado Court of Appeals held that the "active efforts" requirement in ICWA applies to both foster care and termination of parental rights proceedings, and that such efforts must be tailored to the specific needs of the family and child
• Adoptive Couple v. Baby Girl (2013): The U.S. Supreme Court held that ICWA does not apply to a non-custodial Native American parent who has never had custody of the child, and that the placement preferences in ICWA do not apply in voluntary adoption proceedings where no alternative party has formally sought to adopt the child
• In re Alexandria P. (2016): The California Court of Appeal held that the "clear and convincing evidence" standard in ICWA applies to both the foster care placement and termination of parental rights stages of a child custody proceeding
• Brackeen v. Haaland (2021): The U.S. Supreme Court is currently considering a challenge to the constitutionality of ICWA, with potential implications for tribal sovereignty and the future of the Act

Current Challenges and Controversies

• Implementation of ICWA varies widely across states and jurisdictions, with some courts and agencies failing to comply with the Act's requirements
• There is ongoing debate about the constitutionality of ICWA, with some arguing that the Act violates equal protection and other constitutional principles
• The "existing Indian family" doctrine, which some courts have used to avoid applying ICWA in cases where a child has limited or no connection to their tribe, remains a point of controversy
• There are concerns about the overrepresentation of Native American children in the child welfare system, despite the protections of ICWA
  • Native children are still disproportionately removed from their homes and placed in non-Native foster or adoptive homes
• Inadequate funding and resources for tribal child welfare programs and services can hinder the effective implementation of ICWA
• There is a need for greater collaboration and communication between state and tribal child welfare agencies, courts, and other stakeholders to ensure the best outcomes for Native children and families

Future Directions and Reform Efforts

• Increased funding and resources for tribal child welfare programs and services, including culturally appropriate prevention and family preservation efforts
• Enhanced training and education for child welfare professionals, court personnel, and other stakeholders on ICWA requirements and cultural competency
• Greater use of customary adoption and guardianship arrangements that allow Native children to maintain connections to their families, tribes, and cultural heritage
• Expansion of tribal-state agreements and collaborations to improve ICWA compliance and coordinate services for Native children and families
• Continued advocacy and litigation to defend the constitutionality of ICWA and protect the rights of Native children, families, and tribes
• Efforts to address the root causes of Native child removal, including poverty, substance abuse, and intergenerational trauma
• Increased support for Native American foster and adoptive families, including recruitment, training, and ongoing support services
• Exploration of alternative dispute resolution methods, such as family group decision-making and peacemaking circles, that align with Native cultural values and traditions