Indian Child Welfare Act

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Indian Child Welfare Act

• Is it Constitutional?
• Questions from a confused layman

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Background - 1700s

• federal government formed took Indian relations
  away from colonies/states treaties and Indian
  policy became exclusively federal.
• Constitution Article I, 8, cl. 3 Indian
  Commerce Clause. Article II, 2, cl. 2 Treaty
  clause. Seen as justification and authority to
  single out tribal Indians living on or near
  reservations for special treatment.

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Background - 1800s

• Assimilation period
• 1830 Indian Removal Act - reduction of land base
• 1887 Dawes Act - reduced land base for
  citizenship
• Citizenship and assimilation accelerated by
  boarding school education - removal of children
  from the Indian family

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Background - 1800s continued

• Boarding school education had broad support at
  the time.
• Assimilation required suppression of Indian
  culture
• Considered compassionate program.
• Operated to 1930s until the passage of the IRA.

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Background 1900s

• 1934 - Assimilation policy abandoned.
• IRA passed - preserve Indian culture, limited
  self-government and economic development.
• 1954 to 1966 - termination and relocation period.
  Tribal Indians relocate to off reservation urban
  areas.
• 50 to 60 of Indians live outside reservations.
• Tribes began to see population out-flows and more
  intermarriage with non-Indians. Tribes fear
  loosing cultural cohesiveness.

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Background 1900s continued

• 1970s American Indian Policy Review Commission
  identified tribal concerns over the removal of
  Indian children by non-Indian child welfare
  practices.
• Tribes complained removals were generally
  unwarranted, culturally incentive and
  inappropriate and racially discriminatory,

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Indian Child Welfare Act of 1978Codified as
Title 25 Chapter 21 1901-1963

• Intended purpose
• End Indian child custody removals that are
  unwarranted,
• to protect the Indian child as a resource for
  Indian communities..
• Protect the integrity of the Native American
  family
• Protect the unity of Indian Nations
• Preservation of the Native American heritage
• End Americanized, culturally insensitive child
  care standards
• Reject non-Indian values like rugged
  individualism in favor of community based family
  structures

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ICWA objectives

• Grant tribal courts jurisdiction over Indian
  child custody proceedings
• BIA formulates guidelines for procedures
• Defines class status

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ICWA definitions

• Indian child unmarried person under age 18 who
  is a member of a tribe or eligible for
  membership and the biological child of a tribal
  member. (Sec. 1903(4))
• Child custody proceedings voluntary and
  involuntary termination of parental rights,
  adoption placement, status decisions, and divorce
  custody proceedings

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ICWA requirements

• Tribes determine their membership requirements
  burden on tribes to invoke ICWA and provide
  sufficient evidence that a child custody
  proceeding exists and that proceeding involves an
  Indian child
• Court defers proceedings to tribal courts.
  Federal Indian policy determined that tribal
  courts better situated and appropriate to
  determine the best interests of Indian children.
• Jurisdiction on res. exclusive / Off res.
  concurrent

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ICWA requirements

• Tribal courts can decline transfers
• State courts can retain jurisdiction for off
  reservation domiciled Indian children under some
  circumstances
• State courts burdened with myriad of notification
  requirements to tribes
• State agencies required to show active efforts
  to keep Indian families intact prior to outside
  placement of an Indian child

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ICWA requirements

• ICWA requires state courts to employ expert
  witness before placement or termination of
  parental rights
• State courts required to follow ICWA adoptive
  placement preferences1. Indian childs extended
  family2. Indian childs tribal members3. Other
  Indian families

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ICWA requirements

• State court placement preferences for foster care
  or preadoptive placement
• 1. Indian childs extended family
• 2. Indian run foster home licensed or approved by
  Indian childs tribe
• 3. Non-Indian foster home approved by the tribe
• 4. Institution for children approved by the tribe
  or operated by an Indian organization

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ICWA complaints

• Failure to comply with requirements can vacate a
  proceeding (adoption, placement, custody,
  malpractice suits)
• Burden on state social services to comply
• Burden on non-tribal courts to enforce compliance
• Racial classification or political association?
• Provisions of the 14th Amendment for equal
  protection under the law a Constitutional
  breech?

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Is the ICWA is unconstitutional?

• Does this special legal status and treatment of
  Indian children violate the 14th Amendment which
  requires equal protection of the law?
• Does the ICWA violate the requirements of
  prohibitions against racial discrimination?

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The special treatment begins

• Federal common law created the Trust Doctrine
  and guardian-ward doctrine. (Cherokee Cases)
• Congress empowered Indian Office to create Indian
  preference employment under 1934 IRA.

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The Supreme Court said No!

• Morton v Mancari 1974, decided the IRAs Indian
  preference for tribal members is a political -
  not an impermissible racial classification.
• The Court affirmed power of Congress to legislate
  Indian policy through the Commerce Clause and the
  Treaty Clause of the Constitution.

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The USSC says No!

• Civil Rights Act of 1964 prohibits discrimination
  by race, color, religion, sex, or national
  origin.
• Special treatment of Indians allowed when policy
  is rationally tied to fulfillment of the Indian
  trust obligation.
• Could the ICWA present an opportunity challenge
  to Morton v Mancari?

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Questions

• Does ICWA require a race classification that
  cant be deemed political?
• ICWA defines Indian Child- unmarried under 18
  years of age racial?- member of an Indian
  tribe perhaps?- eligible for membership in a
  tribe - ?- biological child of a tribal member -
  ?

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Questions

• Eligible or Enrollable category? - what
  constitutes the most widely used criteria for
  tribal membership?-blood quantum or ancestry!
• Biological child category?- blood quantum or
  ancestry!

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My Questions

• Do group rights supersede individual rights?
• Can a US citizen be saddled with legal
  obligations to a government body starting in the
  womb?
• Should federal government trust obligations to
  Indians tribes trump parental rights?
• Can children be classified as a community
  resource?
• Whose interests are protected community or
  child?
• Is finding a child enrollable or eligible for
  ICWA child custody proceedings racial
  discrimination?

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My Questions

• Is racial and legal quality served when we
• define Indian children as a community resource?
• remain legally obligated to preserve Indian
  Nations?
• are legally liable to protect a groups culture?
• say individual rights are inappropriate for some?
  
• codify policies in conflict with core
  Constitutional principals like personal
  sovereignty and individual rights rather than
  group or community based rights?

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End

• Thanks for your attention