American Indian Law Deskbook

By Hardy Myers; Clay Smith | Go to book overview

Chapter 13
Indian Child Welfare Act

The Indian Child Welfare Act of 1978 (ICWA) 1 was enacted in response to what was characterized as “[t]he wholesale separation of Indian children from their families” through various methods of state court voluntary or involuntary termination of parental rights or other removal of Indian children from their families. 2 Statistics further indicated that such separations occurred at a substantially higher rate for Indian than non-Indian families. 3 This higher rate of separation was attributed to the insensitivity of “many social workers [to] ... Indian cultural values and social norms[,]” which led to misevaluation of parenting skills and to unequal application of considerations such as parental alcohol abuse. 4 State legal procedures were additionally faulted for not providing Indian parents with legal representation or access to qualified expert witnesses and for coercing them into voluntary waivers of parental rights. 5

The ICWA addresses these general concerns in procedural and substantive ways. Its most important procedural elements include establishing tribal courts as the required or preferred forum for adjudication of Indian

____________________
1
Pub. L. No. 95-608, 92 Stat. 3069 (1978) (codified at 25 U.S.C. §§ 1901—1963).
2
H.R. Rep. No. 1386, 95th Cong., 2d Sess. 9, reprinted in 1978 U.S.C.C.A.N. 7530, 7531.
3
Id. (“The disparity in placement rates for Indians and non-Indians is shocking. In Minnesota, Indian children are placed in foster care or in adoptive homes at a per capita rate five times greater than non-Indian children. In Montana, the ratio of Indian foster-care placement is at least 13 times greater. In South Dakota, 40 percent of all adoptions made by the State's Department of Public Welfare since 1967—68 are of Indian children, yet Indians make up only 7 percent of the juvenile population. The number of South Dakota Indian children living in foster homes is, per capita, nearly 16 times greater than the non-Indian rate. In the state of Washington, the Indian adoption rate is 19 times greater and the foster care rate 10 times greater. In Wisconsin, the risk run by Indian children of being separated from their parents is nearly 1,600 percent greater than it is for non-Indian children”); see also 25 U.S.C. § 1901(4).
4
H.R. Rep. No. 1386, supra note 2, at 10, reprinted in 1978 U.S.C.C.A.N. at 7532; see also 25 U.S.C. § 1901(5).
5
H.R. Rep. No. 1386, supra note 2, at 11, reprinted in 1978 U.S.C.C.A.N. at 7533; cf. Marlee Kline, Child Welfare Law, “Best Interests of the Child” Ideology, and First Nations, 30 Osgoode Hall L.J. 375 (1992) (citing similar experiences with the children of Canada's First Nations—i.e., descendants of peoples indigenous to the territory now called Canada).

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