The Future of ICWA: Unconstitutional or Under-serving?

In my first post, I discussed the history of the cultural and actual genocide against Native Americans as well as the broad and family-specific reasons that the Indian Child Welfare Act of 1976 was enacted. In the second, I talked about the case Brackeen v. Zinke (2018), the federal court case currently in the Fifth Circuit Court of Appeals of the United States, in which the constitutionality of ICWA is in question. I also argued that Brackeen—as well as the controversy surrounding ICWA—is tied to the history of removal of Native American children; the requirements in ICWA federally, statewide, and locally; and the understanding we have of Native American culture specifically and culture generally. As the last two posts have focused on the history and present of ICWA, I will now talk about the future of ICWA and some possible policy and implementation changes we can make in order to make it more accessible, and equitable, to children and families who find themselves subject to its jurisdiction.

First, in order to do that, I will try to answer two remaining questions from my first post:

  1. Why [does ICWA] only [include] federally recognized tribes? §1903(8) clarifies the definition of tribe as only those recognized by the “Secretary” and some Alaskan Native villages.
  2. Should the standards and values of ICWA be extended to all minority children? Should the higher legal standards that ICWA requires and the more active efforts expected of child protective services and social services be mandated for all children in foster care?
Continue reading “The Future of ICWA: Unconstitutional or Under-serving?”
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Notice, Courts, and Culture: ICWA in the Modern Era

Although the history of discrimination against Native American children and families is apparent to most, the decision to keep ICWA in practice today remains controversial. In October of 2018, a federal judge in Texas struck down ICWA as unconstitutional in Brackeen v. Zinke (2018). The Fifth Circuit has heard oral arguments and will issue a decision later this year, but dissatisfaction with ICWA has been festering for years. The Brackeens—the family who are the plaintiffs in this case—are merely the face of families and political actors that have been dissatisfied with the way ICWA has played out within the foster care system.

The Notice Requirement and ICWA

You may recall from my first long post that when a child is made a dependent of the court, any and all biological parents are told to notify the court as to whether they have Native American heritage. The burden of finding out the extent of that heritage, which tribe the heritage is from, and notifying the tribe(s) that could possibly be involved with the case lies with the court and county counsel. If either or both parents do not know if they have Native American heritage, the court and county counsel must notify all federally recognized tribes.

ICWA’s notice requirements are incredibly strict. These requirements are set in order for the tribe to be able to make a determination of which child may or may not qualify for membership within that tribe; and therefore, the notice must be “complete, timely, and accurate.”

The California Court’s ICWA Notice Information Checklist details the requirements that the law sets out for county counsel and the court in order to comply with federal guidelines. The notice must contain information about the child’s relatives “as far back as great-grandparents,” at minimum, which includes a duty to interview all extended relatives that are available to provide the names of these ancestors to the tribe. The most detailed list of requirements is found in the form that county counsel must fill out to provide notice; the information, at its most complete, would have:

All names known of the Indian child’s biological parents, grandparents, and great-grandparents, or Indian custodians, including maiden, married and former names or aliases, as well as their current and former addresses, birthdates, places of birth and death, tribal enrollment numbers, and any other identifying information, if known.

That, of course, is an incredible amount of information, and it may be difficult for even the average person—without any Native American heritage—to provide similar information about their ancestors. But, in the past, cases have been overturned on appeal because of “missing middle names, misspellings,” and “reasonably” available information.

But perhaps the most difficult requirement that is currently in California and federal law is that the “court and child welfare department have an affirmative and continuing duty to seek to obtain th[e information above] throughout the life of the case where they know of or have reason to know that the child is or may be an Indian child.” (emphasis added). This means that the adoptive parents of a child who could have Native American heritage—even if the parents themselves have terminated their parental rights—could still be subject to ICWA law, and tribal jurisdiction could still trump their adoptive rights that could be found at any time in the child’s case. While this is an example of California law (see Cal. Welf. and Inst. Code §224.3), similar laws exist in many states throughout the United States or just comply uniformly with ICWA’s exact wording. (For another specific example, see Colorado’s Title 19, Children’s Code §19-1-126; for rote compliance with ICWA, see New Mexico’s §32A-1-14 (2016).

Brackeen v Zinke (2018) and Current Controversy

But what does notice have to do with Brackeen?

Continue reading “Notice, Courts, and Culture: ICWA in the Modern Era”

A Historical Context to the Indian Child Welfare Act

When Congress enacted the Indian Child Welfare Act, 25 U.S.C. § 1901-63, it was in response to an extraordinary number of Indian—that is, Native American—children who were removed from their homes and placed in homes that did not reflect their heritage. The National Indian Child Welfare Association estimates that in 1978, when ICWA was enacted, 85 percent of the Native American children taken out of their homes were placed in non-Native homes—even when relatives were able and willing to care for them—and even today, 56 percent of Native children are adopted outside of their homes and communities. (A more in-depth introduction can be found here.) The question remains—for some at least—whether it is necessary even today.

Terminology and Cultural Sensitivity

As a threshold issue, I would like to address the terminology I will be using. Historically, Native Americans in laws and policy—both federal and state—have been referred to as Indian and Indian tribes. Subsequently, in 2016, President Barack Obama signed a bill that changed all references to American Indian to Native Americans in federal law. ICWA, however, is still referred to as the “Indian Child Welfare Act”—using old terminology—in both the statute and in secondary articles and references. As such, when I talk about the statute, I will continue to refer to it as ICWA, using terminology that may be outdated.

Furthermore, while the United States government has classified Native Americans as a separate group—and certainly, the people and tribes who were here before European colonizers are distinct from all other racial and ethnic groups in the United States—it would be inaccurate to classify Native Americans as one racial or ethnic group. ICWA itself includes Indian children from federally recognized tribes (there are currently 573, and only these are eligible for those benefits under federal and state law) and some from Alaskan Native villages, which are considered a separate but similar group. Without getting too far down an unrelated path, the “Native American identity” is one that is far from singular.

Persons who would fit within a Native American or Indian identity by the United States government have chosen to identify themselves with a variety of terms, including First Nations, Native Americans, or their specific tribe itself. However, in order to prevent confusion, and, because this is meant to be a law and policy post, I will use the term Native American to refer to any child who fits within the definition of a child to whom ICWA can apply, and to those tribes that are federally recognized. (Those definitions can be found here, at 25 U.S.C. 1903(3) to (8).)

A Historical Backdrop

The United States certainly has a history of discrimination against Native Americans, and it is not limited to just the foster care system. Native American tribes have been systemically relegated to a second-class position, killed off, and had their lands taken away from them.

Continue reading “A Historical Context to the Indian Child Welfare Act”

The Indian Child Welfare Act: Past Acts and Future Reform

My name is Nandini Ruparel, and I am a second-year student at Santa Clara University Law School. This semester, I will be focusing my research on the Indian Child Welfare Act (ICWA), enacted by Congress in 1978. ICWA requires that, if a child becomes a dependent of the court and may be eligible for membership in a federally recognized tribe, the tribe has primary jurisdiction over the proceedings. In a practical sense, it means that if the child is eligible for membership in a Native American tribe, it is likely that the child will end up with a family from that tribe. Each individual tribe has different eligibility requirements for membership.

ICWA was enacted in response to a disproportionate amount of Native American children being taken from their homes and placed in non-Native families. Congress found that local social services–and the social workers they employ–lacked cultural and historical understanding of tribal customs and familial child-raising practices.

Currently, there are only two Supreme Court cases that set precedent regarding tribal rights within ICWA; Adoptive Couple v. Baby Girl, decided in 2013; and Miss. Band of Choctaw Indians v Holyfield, decided in 1989. Neither concerned equal protection questions or the constitutionality of ICWA. Last year, in October, however, a federal judge in Texas struck down ICWA as unconstitutional because it uses a race-based classification. The 5th Circuit issued a stay of proceedings, meaning that ICWA, as written, is still in force until the court hears the expedited appeal in March of this year.

In my exploration of the topic, I will be researching the following questions:

  1. What happens to children who are put back in tribal families because of ICWA? Do they feel less/more connected to their heritage? What does the research say, and is there any research that compares the outcomes of these children as compared to foster care kids in general?
  2. What are some policy ideas that have been suggested regarding ICWA? Currently, ICWA remains unchanged from its enactment in 1978, despite bills from congressmen and women over the years to amend the act—some as recently as 2003 (pdf, J-STOR).
  3. Who does support ICWA, and why? Who does not, and why? For example, some research says that ICWA puts the best interests of tribes over the best interest of the child and is unconstitutional under the equal protection doctrine. Others say that the act is the only way to protect Indian tribes from discriminatory acts by social service agencies.

Ultimately, I want to use this research to answer this key question: if we were going to propose policy changes to ICWA, what would be the best changes to benefit both children and their Native American families?