About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

51 Emory L.J. 587 (2002)
Flashpoints under the Indian Child Welfare Act: Toward a New Understanding of State Court Resistance

handle is hein.journals/emlj51 and id is 597 raw text is: FLASHPOINTS UNDER THE INDIAN CHILD WELFARE ACT: TOWARD A NEW UNDERSTANDING OF STATE COURT RESISTANCE Barbara Ann Atwood* INTRODUCTION The Indian Child Welfare Act (ICWA or the Act),' a unique statute in the American legal landscape, was an effort by Congress to reverse the wholesale separation of Indian children from their families and to restore tribal authority over the welfare of Indian children.2 By some accounts the Act has been the victim of entrenched state court hostility ever since its enactment more than two decades ago.3 Reported state court cases-often emerging from widely publicized disputes4-have involved children who are caught in Mary Anne Richey Professor of Law, University of Arizona James E. Rogers College of Law. Earlier versions of this Article were presented at the North American Regional Conference of the International Society of Family Law in Kingston, Ontario, June 12-14, 2001; at a 2001 Summer Faculty Colloquium at the James E. Rogers College of Law; and at the Robert N. Endries Distinguished Faculty workshop at the Syracuse University College of Law on February 15, 2002. On each occasion I greatly benefited from the comments and suggestions of those in attendance. I also am grateful to my colleagues Jim Anaya, Jane Korn, and Rob williams for reading earlier drafts and offering their insights. Additionally, I thank Sarah Collier, Class of 2002, University of Arizona College of Law, for her outstanding research assistance, and Maureen Garmon, Reference Librarian at the University of Arizona Law Library, for her astute help in locating sources. As always I appreciate the support of Dean Toni Massaro and the James E. Rogers College of Law. I Indian Child welfare Act of 1978, Pub. L. No. 95-608 (codified at 25 U.S.C. §§ 1901-1923 (2000)). 2 H.R. REP. No. 1386, 95th Cong. 9, reprinted in 1978 U.S.C.C.A.N. 9260, 9263. 3 See supra note 14 and accompanying text. 4 The media coverage of many ICWA cases typically exploits the emotional as well as the political dimensions of the controversies, a tendency discernible from the headlines alone. See, e.g., Indian Abuse Law Lets Mom Renege on Adoption, MIAMI HERALD, Feb. 3, 1995, at 3A; Indian Woman Invokes Federal Law To Win Back Adopted Child, ROCKY MOUNTAIN NEWS, Feb. 3, 1995, at 38A; Law Protecting Indians Rips Apart Adopted Family, PITrSBURGH POST-GAZETTE, June 16, 1995, at Bl; Sioux Tribe Seeks Custody of Girl Adopted off Reservation, ORLANDO SENTINEL, May 22, 1994, at A21; Tribe Wants Back Indian Child, 10, from Adopted Mother Who Reared Her, LEXINGTON HERALD-LEADER, Feb. 11, 1994, at B 1. A case involving the attempted adoption by an Anglo couple of a Navajo infant, Allyssa Keetso, was widely reported in the late 1980s. See, e.g., Custody of Navajo Baby Is Awarded to Calif Couple at Mother's Urging, ARIZ. DAILY STAR, Apr. 23, 1988, at IA. The Navajo Nation successfully challenged the adoption, and a Navajo tribal court ultimately granted the prospective adoptive couple permanent guardianship with visitation rights in the child's biological mother. See Barbara A. Serrano, Parents, Indian Leaders Clash: Who Do Babies Belong to?, ORANGE COUNTY REG., Aug. 6, 1989, at Al. The dispute recently reemerged in the news when the now- divorced non-Indian guardians disputed custody of the teenage girl. That dispute was heard in the Navajo

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most