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12 Compleat Law. 18 (1995)
The Indian Child Welfare Act - The Need for a Separate Law

handle is hein.journals/gpsolo12 and id is 232 raw text is: THE INDIAN CHILD WELFARE ACT THE NEED FOR A SEPARATE LAW BY B.J. JONES ecause few federal laws gov- ern the disposition of state court cases involving adop- tion, guardianship, and abuse and neglect, the existence of the In- dian Child Welfare Act (25 U.S.C. § 1901 et seq.) may come as a surprise to lawyers handling Indian child custody cases for the first time. The Indian Child XVelfare Act (ICWA), which was adopted by Congress in 1978, applies to child custody proceedings in state courts involving Indian children-chil- dren of Native American ancestry. The provisions of the ICWVA repre- sent a dranatic departure from the procedural and substantive laws that most states have enacted to govern child custody proceedings. Because Indian children are treated uniquely in the legal system, and because there is an increasing number of court proceedings involving Indian children, the need for lawyers to understand the ICVA is fast becoming imperative. (Since the IC\A was enacted, more than 250 state and feder- al court decisions have been rendered.) A look at history reveals why Congress deter- mined a special law was needed to protect the rights of Indian children and their parents. Before 1978, as many as 25 to 35 percent of the Indian children in certain states were removed from their homes and placed in non-Indian homes by state courts, welfare agencies, and private adoption agencies. Non-Indi- an judges and social workers-tfiling to appreciate traditional Indian child-rearing practices-per- ceived day-to-day life in the children's Indian homes as contrary to the children's best interests. In Minnesota, for example, an average of one of every four Indian children younger than age one was removed from his or her Indian home and adopted by a non-Indian couple. A number of these children were taken from their homes simply because a paternalistic state system failed to recog- nize traditional Indian culture and expected Indian families to conforn to non-Indian ways. Other children were removed because of the overwhelming poverty their families were facing. Although, admittedly, poverty creates obstacles to child rearing, it was used by some state entities as evidence of neglect and, therefore, grounds for tak- ing children from their homes. It was not only the high number of children being removed from their homes, but also the fact that 85 to 90 percent of them were being placed with non-Indians that caught the attention of Con- gress. Congress was actively promoting the contin- ued viability of Indian nations as separate sovereigns and cultures at that time. By enacting the substan- tive placement preferences in ICWA-which require that Indian children, once removed, be placed in homes that reflect their unique traditional values (25 U.S.C. § 1915)-Congress was acknowl- edging that no nation or culture can flourish if its youngest members are removed. The act was intended by Congress to protect the integrity of Indian tribes and ensure their future. When Does the ICW Apply? The ICWA applies to four types of Indian child custody proceedings: 11.7. Jones is litigation directorJbr Dakota Plains Legal Services, which provides legal assistance to the indigent residents ofeight South Dakota and North Dakota Indi- an reser-cations and their adjoining counties. ie is author o'The Indian Child Welfare Act Handbook (111 Iamily Law Section, 1995).

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