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
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.
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.”
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.
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.
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
Brackeen v Zinke (2018) and Current Controversy
what does notice have to do with Brackeen?
Continue reading “Notice, Courts, and Culture: ICWA in the Modern Era”