#11469 - Indian Child Welfare Act Icwa - Federal Indian Law

The Problem:

1. Huge amounts (25-35%) of Indian children were being taken from their parents and placed in foster homes or adopted – often by white families

   1. neglect was found in cases as simple as NAs not having modern conveniences or where misunderstandings of NA culture existed

The solution

1. The Indian Child Welfare Act

2. The Court sought to address the problem in four ways:

   1. where possible giving tribal courts jurisdiction of child custody cases, where not possible, involving tribes in the proceedings

   2. providing parents with added procedural protections and raising substantive standards before involuntary removal

   3. creating placement preferences for children

      1. encourage placement with child’s extended family, tribe or other Indian families and only if none of these then others

         1. but if a tribe passes a different preference order the court has to follow this

   4. provide assistance to tribes to manage their own child welfare services and facilitating cooperation between tribes and states

The basics

1. Tribal court has jurisdiction over any custody proceedings

   1. involving an Indian Child who resides or is domiciled on the reservation

      1. unless another federal law says it doesn’t

   2. and over any Indian child that is a ward of a tribal court regardless of residence

2. Any removal or termination proceedings for an Indian child that does not live on the reservation should be transferred to the jurisdiction of the tribe unless there is good cause not to

   1. good cause is defined narrowly?

3. In any state court proceedings over foster care placement etc the child’s tribe shall have the right to intervene at any point in the proceedings

4. All jurisdictions have to give full faith and credit as they would to any other jurisdiction to Indian tribe public acts, records etc applicable to Indian child custody proceedings

5. Where a court knows or should know that an Indian child is involved, they must give notice to the parent/guardian and the tribe and the parent or custodian shall have right to counsel

6. Before parental termination etc the party seeking the termination etc must satisfy court that remedial efforts were made and were unsuccessful

7. must show by clear and convincing evidence that continued custody would likely result in serious emotional or physical damage

Issues with the Act

1. Many abuses still continue

2. The act is controversial

   1. it places the rights of birth parents against tribes

Indian Child definition

1. tribe member under 18 that’s nor married

2. or the child of a tribe member that is eligible for enrollment

Mississippi Band of Choctaw Indians v. Holyfield

1. Two twins were Indian children who were born off reservation bc their mother who lived on the reservation drove off to give birth to them – the non-tribal court issued decree giving the twins to a non-tribal family

2. Issue: were the domiciled on or off the reservation for purpose of whether tribal court had jurisdiction

3. Hold: they were domiciled on the reservation and therefore the tribal court had exclusive jurisdiction over the matter

   1. Reasoning:

      1. General rule is that children are domiciled where there parents are regardless of where the reside

      2. Congress would not have intended...