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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