Indian Family Exception Doctrine: Still Losing Children despite the Indian Child Welfare Act

Article excerpt

Since 1982, the Indian Family Exception Doctrine has been circumventing the Indian Child Welfare Act of 1978. Although not clearly defined, the doctrine has been pivotal in several American Indian child welfare cases in the United States. Over time, the doctrine continues to evolve and self-define. Several phrases have become part of the definition, such as Indian family and culture. This doctrine presents major concerns and implications in the field of child welfare.

The Indian Child Welfare Act (ICWA) (RL. 95-6078), which Congress passed in 1978, was designed to stop the child welfare practices that resulted in the break-up of American Indian families. Before the ICWA, many courts and welfare departments were removing an inordinately high percentage of Indian children from their homes and tribal nations (Jones, 1995). "As a result, Indian children were losing their cultural identity, while the tribes were losing their greatest resource-the next generation of tribal members" (Indian Adoption Awareness Project, n.d.).

Rights Established Within ICWA

The Parents

The rights established within the Indian Child Welfare Act that pertain to parents include examination of all case records, notification of any court proceeding at least 10 days in advance, receipt a continuance of up to 20 additional days, and a court-appointed attorney if indigent.

The Tribe

The tribes also have rights, which are established within the ICWA. These rights include exclusive jurisdiction over any Indian child who is domiciled on a tribe's reservation, notification of any court proceeding at least 10 days in advance, request of a transfer of the child welfare case to tribal court, intervention at any point in a state court proceeding, and ability to change the placement preferences. The tribal acts and records also must be afforded full faith and credit.

Families, Expert Witness, and Social Service Agencies

Additional minimum requirements established by the ICWA include providing families with services that are remedial and rehabilitative in nature, as well as focused on preventing the break-up of the family before removal or reunifying that family before termination of parental rights; providing active assistance from social workers to families to achieve service plan goals; supplying expert witness testimony to establish that continued custody is likely to result in serious harm or danger to a child; and following ICWA preferences when a child is ordered to an out-of-home placement unless a good cause exists. For all out-of-home placements, the ICWA requires social service agencies to place American Indian children in the homes of extended family members. ICWA notes that no preference is established for Indian extended family members over non-Indian members.

The Development of the Doctrine

The doctrine affecting the ICWA is a judicial belief developed by the Kansas State judicial system and first implemented in 1982 to adjudicate ICWA cases (Wrend & Smith, 1998). The rationale for the doctrine may include state judicial systems not completely understanding the tribal cultural and court systems, as well as frustration over the additional time required to comply with the ICWA, which can result in the delay of decisions in cases.

Since the first usage of this judicial belief in 1982, an increase in its variation and use by other states has occurred. The judicial doctrine is frequently termed the Indian family exception doctnne, the Indian family doctrine, or the existing Indian family doctrine (Keedy & Reed, 1999; Wrend & Smith, 1998). The result of the implementation of this judicial doctrine is the circumvention of the ICWA. The continued usage of the doctrine in all of its variations is likely to produce significant changes for American Indian families, tribal nations, and the work of child welfare administrators, leaders, workers, and court officials.

History

A clear understanding of American Indian history is necessary to know how child welfare policy and practice affects this population. …