User:RexxS/Legal cites

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Background[edit]

Indian Child Welfare Act[edit]

black & white photo of American Indian children in cadet uniforms at Carlisle Indian School
Group of Omaha boys in cadet uniforms, Carlisle Indian School
Main article: Indian Child Welfare Act

Prior to the adoption of ICWA in 1978, Indian children were often forcibly removed from their homes and placed in either Native American boarding schools or in non-Indian foster and adoptive homes.[1][2][3] Studies conducted in 1969 and in 1974 indicated that many as 25 to 35 percent of tribal children were being removed from their homes, and consequently from tribal culture. Testimony in the House Committee for Interior and Insular Affairs showed that in some states, the per capita rate of Indian children in foster care was nearly 16 times higher than the rate for non-Indians.[4] In some cases, the Bureau of Indian Affairs (BIA) paid the states to remove tribal children and to place them with non-Indian families and religious groups.[4][5][6][3] Congress determined that if Indian children continued to be removed from Indian homes at this rate, tribal survival would be threatened and stated that tribal stability was as important as the best interests of the child.[7][3] One of the factors in this judgment was that, because of the differences in culture, what was in the best interest of a non-Indian child was not necessarily what was in the best interest of an Indian child, especially due to the influence of extended families and tribal relationships.[8] The Indian Child Welfare Act[9] (ICWA) was enacted in 1978 to protect Indian tribes and their children.[10][11]

The ICWA applies to "Indian children", 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."[12][13] Additionally, in the case of a voluntary adoption of an Indian child, the courts must follow specific guidelines for the Indian birth parents to waive their parental rights or have them terminated. The ICWA provides that to relinquish parental rights, an Indian parent must:

  1. do so in writing,
  2. do so before a judge,
  3. who must certify that the parent understood his or her actions,
  4. understands spoken English or has a translator available, and
  5. a relinquishment may not be executed prior to ten days after the child's birth.[14][15]

The Indian parent may also withdraw their consent to an adoption at any time prior to a final order, or within two years of the final order if their consent was obtained through fraud or under duress.[16][17] If involuntary termination occurs[fn 1], it must be "supported by evidence beyond a reasonable doubt."[18] When consent is withdrawn or if the ICWA procedures are not followed, the Indian child is to be immediately returned to the Indian parent.[19][20]

Tribal rights are also covered by the act.[21][22] Tribal courts have exclusive jurisdiction for cases arising on Indian reservations[23][24][25] and concurrent jurisdiction elsewhere. The case may be removed from a state court to a tribal court at the request of the tribe[fn 2] unless one of the Indian child's parents object.[27] In any case, the tribe has a right to intervene in the proceeding and to act to protect the tribal rights of the child.[27]


References[edit]

Footnotes[edit]

  1. ^ Involuntary termination is the termination of parental rights over the objections of that parent, and the normal standard of proof required is clear and convincing evidence. The ICWA requires a higher standard of reasonable doubt.[18]
  2. ^ "Since ... state social service agencies and state courts are part of the problem, transfer of jurisdiction over child custody matters to tribal authorities is mandated by the ICWA whenever possible."[26]

Notes[edit]

  1. ^ Troy R. Johnson, The State and the American Indian: Who Gets the Indian Child?, 14 Wicazo Sa R. 197 (1999)
  2. ^ Meg Kinnard, Court agrees with return of Native American girl to Oklahoma father[dead link], Tulsa World, July 26, 2012
  3. ^ a b c Marcia Zug, Doing What's Best for the Tribe, Slate, Aug. 23, 2012.
  4. ^ a b H. Comm. on Interior and Insular Affairs, Indian Child Welfare Act of 1978, H. Rep. No. 95-608, reprinted in 1978 U.S.C.C.A.N. 7530 (1978).
  5. ^ Nigel V. Lowe & Gillian Douglas, Families Across Frontiers 254 (1996)
  6. ^ Peter D'errico, Stolen Generations: Adoption as a Weapon, Indian Country Today, Jan. 2, 2013
  7. ^ Alvin M. Josephy, Joane Nagel, & Troy R. Johnson, Red Power: the American Indians' Fight for Freedom 124 (2d ed. 1999)
  8. ^ B.J. Jones, Mark Tilden, & Kelly Gaines-Stoner, The Indian Child Welfare Act Handbook: A Legal Guide to the Custody and Adoption of Native American Children 12–13 (2d ed. 1995)
  9. ^ The Indian Child Welfare Act of 1978, Nov. 8, 1978, 93 Stat. 3071 (codifed as amended at 25 U.S.C. §§ 1901–1963.
  10. ^ 25 U.S.C. § 1901
  11. ^ Snyder 1995, at 815, 820.
  12. ^ 25 U.S.C. § 1903(4) (1988)
  13. ^ Snyder 1995, at 821.
  14. ^ 25 U.S.C. § 1913(a) (1988)
  15. ^ Snyder 1995, at 836–37.
  16. ^ 25 U.S.C. § 1913(c) (1988)
  17. ^ Snyder 1995, at 837–38.
  18. ^ a b 25 U.S.C. § 1912 (1988).
  19. ^ 25 U.S.C. § 1913(c) (1988)
  20. ^ Snyder 1995, at 837.
  21. ^ 25 U.S.C. § 1911(c) (1988)
  22. ^ Snyder 1995, at 828.
  23. ^ Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 51–52 (1989)
  24. ^ 25 U.S.C. § 1911(a) (1988)
  25. ^ Snyder 1995, at 826.
  26. ^ Snyder 1995, at 827 (citing In re B.W., 454 N.W.2d 437, 446 (Minn. Ct. App. 1990))..
  27. ^ a b 25 U.S.C. § 1911(a) (1988).

Sources[edit]

Michael C. Snyder, An Overview of the Indian Child Welfare Act, 7 St. Thomas L. Rev. (1995)

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