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?

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