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The ANA Messenger - Spring Edition

Published: June 6, 2013
Audience:
Social and Economic Development Strategies (SEDS), Environmental Regulatory Enhancement
Types:
Newsletter

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The Indian Child Welfare Act (ICWA)—Why it Matters

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By Camille Loya

Put simply, the Federal government enacted the Indian Child Welfare Act (ICWA) 35 years ago to address and to prevent abuse and harm caused by state-sponsored or authorized removal of Indian children from their families and their tribes.  In enacting ICWA in 1978 Congress made the following specific findings of fact:

(1) that clause 3, section 8, article I of the United States Constitution provides that ''The Congress shall have Power * * * To regulate Commerce * * * with Indian tribes '' and, through this and other constitutional authority, Congress has plenary power over Indian affairs;

(2) that Congress, through statutes, treaties, and the general course of dealing with Indian tribes, has assumed the responsibility for the protection and preservation of Indian tribes and their resources;

(3) that there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children and that the United States has a direct interest, as trustee, in protecting Indian children who are members of or are eligible for membership in an Indian tribe;

(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.

Against this backdrop, ICWA established minimum federal jurisdictional, procedural and substantive standards intended to accomplish two things: protecting the right of an Indian child to live with an Indian family AND to stabilize and ensure the continued existence of Indian tribes.  When ICWA applies to an Indian child’s case, the child’s tribe and family are required as a matter of legal right to have an opportunity to be involved in decisions affecting services for the child.  A tribe or a parent can also petition to transfer jurisdiction of the case to their own tribal court.  ICWA sets out federal requirements regarding removal and placement of Indian children in foster or adoptive homes and allows the child’s tribe to intervene in such cases.

At the time ICWA was enacted Indian children faced a disproportionately high risk of removal from their homes, families, and tribal communities.  Most of these children ended up in non-Native homes leading to the break-up of Indian families and, ultimately, to the loss of future tribal members.  Unfortunately, due to a number of factors, this situation remains largely true today.  It remains an absolute that “there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children and that the United States has a direct interest, as trustee, in protecting Indian children who are members of or are eligible for membership in an Indian tribe.”  That is why ICWA matters so much and its enforcement is a matter of honor. 

There are many sources of information about ICWA and ICWA practice.  A good place to start is the Native American Rights Fund’s A Practical Guide to the Indian Child Welfare Act which can be downloaded for research or educational use at http://www.narf.org/icwa/print.htm or purchased for a nominal fee at https://secure2.convio.net/narf/site/Ecommerce?ecommerce=store_list&a...

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