Implementing and Defending the Indian Child Welfare Act through Revised State Requirements

By Turner, Caroline M. | Columbia Journal of Law and Social Problems, Summer 2016 | Go to article overview

Implementing and Defending the Indian Child Welfare Act through Revised State Requirements


Turner, Caroline M., Columbia Journal of Law and Social Problems


I. Introduction

The Indian Child Welfare Act of 1978 (ICWA)1 was enacted "to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture . . . ."2 The legislation included findings

(3) that there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children ... ;

(4) that an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions; and

(5) that the States, exercising their recognized jurisdiction over Indian child custody proceedings through administrative and judicial bodies, have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families.3

Opposition to the statute has, however, existed since its enactment,4 and opponents have additional incentive to urge courts to ignore or narrow the Act's provisions in light of a recent U.S. Supreme Court ruling.5 This Note identifies several of the types of attacks that have been and continue to be waged on the statute, and encourages, using New York State as an example, adop tion by states of federal non-binding guidelines issued in 20156 and of legislative rules promulgated in 20167 as enforceable state requirements.

Preliminarily-, a brief discussion of several of the Act's provisions maj^ be helpful. The Act is applicable to Indian child custody proceedings. "Child custody proceedings" refers to foster care placement, the termination of parental rights, pre-adoptive placement, and adoptive placement proceedings.8 An "Indian child" is defined as "any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe."9 New York State extends coverage to age 21 if the child entered foster care prior to his or her eighteenth birthday. "Indian tribe" is defined in ICWA as "any Indian tribe, band, nation, or other organized group or community of Indians recognized as eligible for the services provided to Indians by the Secretary because of their status as Indians . . . .**

Section 1911 of ICWA provides that "[a]n Indian tribe shall have jurisdiction exclusive as to an}^ State over an3^ child custody proceeding involving an Indian child who resides or is domiciled within the reservation of such tribe, except where such jurisdiction is otherwise vested in the State by existing Federal law."11 In state court proceedings for foster care placement or termination of parental rights, a state court "in the absence of good cause to the contrary, shall transfer such proceeding to the jurisdiction of the tribe, absent objection by either parent, upon the petition of either parent or the Indian custodian or the Indian child's tribe . . . ."12 "In an}?- State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child, the Indian custodian of the child and the Indian child's tribe shall have a right to intervene at any point in the proceeding."13 Tribal court proceedings are afforded full faith and credit.14

Section 1912 provides that, in any involuntary' proceeding in a state court concerning foster care placement or termination of parental rights, notice by registered mail must be provided to the parent or Indian custodian and to the Indian child's tribe.15 In addition, "[a]ny party seeking to effect a foster care placement of, or termination of parental rights to, an Indian child under State law shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family, and that these efforts have proved unsuccessful. …

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