The Indian Child Welfare Act in 1978 ( ICWA ) ((Pub.L. 95-608, 92Ã, Stat.Ã, 3069, enforced on 8 November 1978), codified at 25 USCç§Ã, 1901-1963.) It is the Federal law that regulates jurisdiction over the abolition of Indian (Indian) children from their families.
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ICWA provides a strong tribal government of the child custody process involving Indian children, by allocating exclusive jurisdiction of the tribe to the case when the child is living, or domiciled, a reservation, or when the child is a tribal ward; and conclusions, but allegations, jurisdiction over the placement process of native indigenous non-reservations.
History
ICWA was enacted in 1978 due to the high rate of forced displacement of Indian children from their traditional homes and essentially from American Indian culture as a whole. Prior to enactment, as many as 25 to 35 percent of all Indian children were forcibly excluded, mostly from intact Indian American families, and housed in non-Indian homes, in the absence of a deliberate American Indian culture. In some cases, the Indian Affairs Bureau (BIA) pays the states to relocate Indian children and places them with non-Indian families and religious groups. Testimony in the House Committee for Interior and Insular Affairs shows that in some cases, the per capita rate of Indian children in care is almost 16 times higher than non-Indian levels. If Indian children continue to be excluded from Indian homes at this level, the survival of the tribe will be threatened. It also damages the emotional life of many children, as adults have gone through the process of witnessing. Congress acknowledges this, and states that the interests of tribal stability are as important as the best interests of the child. One factor in this assessment is that, due to differences in culture, what is in the best interest of a non-Indian child is not always what is in the best interest of an Indian child, especially as they are traditionally larger extended family and tribal relationships within their culture.
As Louis La Rose (Winnebago Tribe of Nebraska) testified:
I think the cruelest tricks ever done by white men to Indian children are to take them to an adoption court, wiping out all their records and sending them to a small family... living in a white community and he's back in the reservation and he's altogether do not know who his relatives are, and they effectively make him not a person and I think... they destroy him.
Congress acknowledges that four major factors contribute to the high rate of dismissal of Indian children. These are 1) "the lack of culturally competent cultural welfare standards to assess the fitness of Indian families; 2) systematic violations of legal proceedings against Indian children and their parents during custody procedures; 3) economic incentives supporting the abolition of Indian Children from their families and communities; 4) and social conditions in the Indian state. "
Other groups also have shares in this decision. The Church of Jesus Christ of Latter-day Saints (LDS Church) has an Indian Placement Program that removes Indian children from their tribe and into the homes of church members. In the 1970s, about 5,000 Indian children lived in Mormon homes. The lack of knowledge about American Indian culture by most social workers also contributes to a high level of elimination. Most social workers are conditioned by the "best interests of the child" as outlined by Beyond the Best Interests of the Child (Second Edition), that supports bonding with at least one adult as a parent figure. It does not take into consideration the tribal culture of extended tribal families, where children can have a close relationship with the extended family. The American Indian practice commonly practiced by a child raised by extended relatives is regarded as a waiver by a supposedly paternalistic social worker. But tribal members consider this normal behavior and the desired way to make sure the child is cared for by the family.
During congressional considerations, held at the request of Native American advocacy groups, the opposition was raised by several states, the LDS Church, and several social welfare groups. The bill was encouraged by Representative Morris Udall of Arizona, who lobbied President Jimmy Carter to sign the bill. This is strongly supported by Senator James Abourezk of South Dakota, who has written the Bill and previously contributed in establishing the Indian Indian Policy Review Commission and the Selected Committee on Indian Affairs, each of which he leads.
The main purpose of Congress in submitting ICWA is to protect Indian culture and tribal integrity from unnecessary removal of Indian children by state and federal agencies. Awareness of the issues facing American Indian children emerged from advocacy and research by the American Indian Affairs Association. Congress reasoned that "there is no more important resource for the survival and integrity of Indian tribes than their children."
Jurisdiction
Minimum Standard
ICWA sets minimum Federal standards for almost all child custody processes in India, including adoption, voluntary dismissal of parental rights, dismissals and parenting of Indian children, but excludes divorce and child delinquency processes. ICWA declares that state courts have no jurisdiction over the adoption or custody of Indian children living within their own tribal reservation. "Indian child" is "any unmarried person under the age of eighteen and is (a) a member of an Indian tribe or (b) qualifies for membership in an Indian tribe and is a biological child of a tribal Indian member."
ICWA applies to "child custody process" involving an Indian child. The term "continued child custody" includes: (i) "placement of care", where the child has been placed in an orphanage, and the parent can not return the child upon request, but where the parental rights have not been terminated; (2) termination of parental rights; (3) "preadoptive placement", which means placing a child in an orphanage after the termination of parental rights, but before or as a substitute for adoption; and (4) adoption.
ICWA does not cover child custody checks during the divorce process. ICWA also does not cover cases of juvenile delinquency in which a child has committed something considered a crime if committed by an adult. Since the Indian tribes played a major role in the care of very different children from India, ICWA provided important jurisdictional power to Indian tribes to preserve Indian culture. Tribal courts hold either exclusive jurisdiction or concurrent jurisdiction depending on several factors.
Exclusive tribal jurisdiction
Under the ICWA, Indians have exclusive jurisdiction over an Indian child living or domiciled in tribal lands. This includes reservation land, other tribal lands held in trust by the Federal government for the interest of the tribe or individual, or held by an individual tribe or subject to restrictions by the United States against alienation. The latter two describe tribal lands such as those in Oklahoma that are transferred to each Indian under various laws. Indian tribal courts also have exclusive jurisdiction over Indian children who are court or tribal wards, regardless of their location.
The first Supreme Court case dealing with ICWA was the 1989 Mississippi Band of Choctaw Indians v. Holyfield (490 30 AS, 109 S.Ct. 1597). The Court ruled that ICWA grants exclusive jurisdiction of tribal courts over cases in which their parents are domiciled in the reservation, no matter what their personal wishes are in custody.
consecutive jurisdiction
Concurrent jurisdiction is a joint jurisdiction between tribal courts and state courts. The state court has been criticized for ignoring the legal requirements. In all cases that tribal courts have no exclusive jurisdiction, they have concurrent jurisdiction. These cases will be a process of detention involving Indian children who do not live or are not domiciled in tribal lands (such as a person born from a reservation and whose parents do not reside in the reservation). In this concurrent decision, ICWA expresses a preference for tribal jurisdiction in the process of child custody in India.
Maps Indian Child Welfare Act
Procedures
Notice and rights
In an unintentional process, the party seeking child placements, often but not necessarily state, should notify parents and/or Indian guards and child tribes at least 10 days before proceeding. Legal proceedings may follow state law, but the process thereafter is controlled by ICWA. If the state can not determine who the parent or tribe is, then the state is required to notify the Secretary of the Interior. The notice shall contain all necessary information identified in 25 CFR Ã,§ 23,111 and sent by registered mail or certified with the requested receipt, and the party notified has the right to an additional 20 days to prepare before proceeding. Failure to provide such notice may result in a defect in jurisdiction which may result in such action being nullified.
The case of ICWA may be dismissed due to lack of proceedings because if not for the lack of jurisdiction "due to" failure "to provide appropriate notice of dependence proceeding to the tribe by which dependent children may be affiliated seize participation by the tribe, [ICWA] notice requirements are strictly construed. "'."
"Determining the status of an Indian child is for the tribe, therefore, juvenile just needs advice from an Indian ancestor to trigger the notice requirements."
The circumstances in which the juvenile court has reason to believe that a child is an Indian child is an Indian child including, but not limited to, the following: '(I) Any party to this case, Indian tribe, Indian organization or public or private entity informs the court that the child is an Indian child. (II) Any public or state licensed entity involved in child protection or family support services has found information indicating that the child is an Indian child. (III) The child who was the subject of the trial gave the court reason to believe that he was an Indian child. (IV) The residence or domicile of the child, his biological parents, or carers of India is known by the courts to become or prove to be a predominantly Indian society. (V) A court officer involved in the trial has knowledge that the child may be an Indian child. '(Guidance of the District Court) of the Indian Proceedings (44 Federal Register 67584, 67586 (November 26, 1979)) (Guide); [previous] rule 1439 (d) (2).
The MOWA Band of Choctaw Indians, a federally recognized tribe by the US Federal Government but not recognized for the services of the Indian Affairs Bureau under 25 C.F.R 83 et al. is used for precedents for many cases where the following conditions apply:
In cases where the mother may not be a tribal member, but she is eligible, then before the provisions of ICWA apply, "the court must first determine whether a child is an Indian child in the ICWA sense." This is because "current parent registrations are not always dispositive of children's membership in Indian tribes". Findings in the case of the children involved are "In the case of C.H. et al., 510 N.W.2d (S.D. 1993) that the MOWA Band of Choctaw Indians were detained to become a federally recognized tribe for ICWA purposes.
The child may be given a lawyer, and parents are entitled to one if they are incapable and unable. If the state has no provision to provide the parent of the needy as a lawyer, the Secretary of the Interior shall pay the attorney's fees.
All parties have the right to examine all documents and reports relating to the process.
In the case of removal, the party requesting removal (usually Child Care Services or similar agents) is required to make an active effort to provide the parent or custodian with a repair and rehabilitation service designed to prevent the transfer of a child from an Indian family. The "active effort" requirement also applies even if the party seeking removal is a private party, as in the adoption of a private party. The child can not be temporarily removed unless there is a possibility of "serious emotional or physical damage" to the child if they stay home.
Interventions
Indian tribes and parents or caregivers of Indian children have rights that are not eligible to intervene in cases involving the placement of a caregiver or termination of parental rights. Interventions can be at any time, and not just at the beginning of the process. This right does not apply to pre-adoption or adoption process unless it also includes termination of parental rights.
Transfer to Tribal Court
Movement to Transfer
In parenting or cessation of parental rights cases in which the tribe and the state exercise concurrent jurisdiction, the tribe, either the biological parent, or the Indian guard may move to transfer the case from a state court to a tribal court. ICWA technically allows transfers to tribal courts at all times in court, but state courts vary on how they see transfer requests after state court proceedings are in the process of adjudication. In some cases, the state will see the Adoption and Safe Families Act to refuse such transfers based on the legal timing standard. Once the movement for the transfer has been made, there is a presumption that the tribal court will accept the case and the state court is required to make the transfer unless one of the three factors is present.
Objections to Transfer
Biological parents, whether Indians or non-Indians can refuse and veto the transfer of proposed cases to tribal courts. Prospective parents, Indian children, or other parties may object, but can not veto transfers, and such objections will be covered under the terms "good cause". If a parent chooses a transfer, the case will remain in a state court. This is most often seen where one parent is non-Indian.
Declination by Tribal Court
Tribal courts may refuse to accept the transfer of cases from state courts. An example is where parents move to transfer cases, but the tribe refuses to accept jurisdiction due to lack of funding for programs that will support children and parents at the tribal level who are present at the state level. Note that tribal courts can not be traditional courts, but there may be other administrative bodies empowered by the tribe to act on child custody.
Active Remediation Effort
One aspect of ICWA that can provide the greatest hope for Native American families is the requirement of active efforts with existing families to rehabilitate the root cause prior to the transfer of children. Many tribes focus on intercession before the crisis. By involving risky families, and providing services, families can be cured and the results for both children and families change dramatically for the better. Focused on remediation and rehabilitation services to protect families, unique services tailored to the tribal values ​​offered, to help parents understand their role as parents in culture. Early intervention and support help caregivers and families achieve better outcomes by addressing parenting skills, addiction, domestic violence and housing instability. Results in the intervention/support study showed 81% of family preservation, or were placed with extended families. By working with ICWA and the tribes to create culturally sensitive prevention services, the results can change dramatically. Such services need not be limited to tribal members, but are also available to foster and adopt families to help connect with the child's cultural roots.
Good Cause
The state court may refuse to transfer a case for "good cause," but the term is not defined in ICWA. BIA has issued a set of guidelines for state courts to use in determining "goodwill". Although this guide is not mandatory, many countries adopt it, and that includes:
- There is no tribal court as defined by ICWA,
- The trial process takes place at an advanced stage when a transfer request is made, and the requesting party does not request a transfer immediately upon receipt of a process notice,
- Indian child over 12 years old and object for transfer,
- This will cause undue hardship to parties and/or witnesses to travel to a tribal court, or
- Parents of an Indian child over 5 years of age are unavailable and the child has little or no contact with the tribe.
The BIA has also established factors that the court of the state may not consider when considering whether there is a good cause. This is a binding rule, effective since December 12, 2016. The prohibited factors are:
- Whether the process is at an advanced stage, if the parent, guardian or Indian tribe does not receive notice of the trial until the later stages;
- Is there a previous process involving the child in which the transfer was not requested;
- Whether transfers can affect the placement of the child;
- Cultural connections of children with tribes or reserves; or
- Socioeconomic conditions or negative perceptions of tribal social services or the judicial system.
Existing Indian Family Exception
Exception History
In 1982, the Supreme Court of Kansas declared that ICWA "does not dictate that unauthorized infants who have never been a member of Indian homes or culture, and may never, have to be removed from their main cultural heritage and placed in an Indian environment over objections from their mother non-India. "Based on the facts of the case, the court stated that ICWA is not valid unless the child is part of an" existing Indian family unit. " The Court rejected the Kiowa Tribe of Oklahoma's right to intervene in the case, stating that the ICWA does not apply. The court also stated that although ICWA is in effect, the court did not make any reversible mistakes because non-Indian mothers would object to the transfer of cases to the tribal court and, thus, defeat the displacements.
From the case of the Supreme Court of Kansas appeared a body of jurisprudence around the exclusion of "existing Indian families" to ICWA. In the years after the case of Kansas Baby Boy L. About half of the states adopted or expanded this "existing Indian family" exclusion, despite the fact that the language did not appear in the ICWA text..
After the case of Kansas Baby Boy L. , in 1989, the United States Supreme Court heard Mississippi Band of Choctaw Indians v. Holyfield. 490 US 30 (1989) Like Baby Boy L. , both parents at Holyfield approve their voluntary cessation of custody and adoption of their baby by a non-Indian family. Unlike parents at Baby Boy L., the mother in this case stayed in the reservation both before and after the birth of the children from the reservation. The Supreme Court found that the child was "domiciled" on the reservation because his biological mother was living in the reservation. Therefore, exclusive jurisdiction of tribal courts under ICWA should be made. The case was submitted to the tribal court for the determination of custody three years after the child was placed with a non-Indian adoptive parent. Taking into account the potential for disruption in the life of the child, the Supreme Court noted that any potential danger could be avoided if the parents and the state court did not unlawfully deny the rights of its tribe under the ICWA.
While the Supreme Court does not consider the exclusion of "existing Indian families", some sources call Holyfield an implicit refusal of exceptions. Other sources have noted that the Holyfield case is relied upon as support for both sides of the debate over the exclusion of "existing Indian families":
Surprisingly, Holyfield has been relied upon by both courts and parties to support and reject the existing Indian family's exceptions, which have been asked in a process involving Indian children and families living off the reservation and who, by therefore, subject to the jurisdiction of the state court along with the tribal court.
In 2010, Alabama, Indiana, Kentucky, Louisiana, Missouri, and Tennessee still use the exception of "existing Indian families". Alabama and Indiana have limited its application with further court decisions. Nineteen countries have rejected doctrine, either by court or by law, including Kansas, where the Kansas Supreme Court expressly nullifies the decision of Baby L. in In re A.J.S. , states:
Given all of the above, we hereby dismiss Baby Boy L. (quoted omitted), and abandon the existing Indian family doctrine. The Indian heritage and its treatment have a unique history in US law. A.J.S. has an Indian and non-Indian heritage, and the courts are a right to deny the essentialization of any ethnic or racial group. However, the overall design of ICWA, including the threshold of "good influence" in 25 U.S.C. 1915, ensuring that all interests - whether natural parent, tribe, child, and prospective adoptive parent - are properly considered and safeguarded. ICWA applies to the case of child custody of this state court involving A.J.S., and the Cherokee State must be allowed to intervene.
In June 2016, the Ministry of Home Affairs specifically rejected the exclusion of an existing Indian family. The rules not only reflect that the court that rejected the doctrine was right to do so, but also that "Congress does not intend to limit the application of ICWA to tribal people who are actively involved in Indian culture."
Criticism
Some critics have complained that the exemption of an existing Indian family requires a state court to determine what it means to be an Indian child or an Indian family, by applying a test to determine the child's "India". One such test involves an evaluation if the child lives "in an actual Indian home", "apparently thinking of teepee, hogan, or pueblo." Another work noted that "state courts have taken it on their own to define individual relationships with their tribes by checking contacts such as subscribing to a tribal newsletter."
In his 1997 testimony before the Joint hearing of the House Resource Committee and the Senate Committee on Indian Affairs, the Assistant Secretary of the Interior There was a deer (Menominee Indian Tribe of Wisconsin) stating:
... we would like to express our concern that ICWA's goals continue to be thwarted by state courts to make legal exceptions for ICWA. We are concerned that District Court judges who have created "existing Indian family exceptions" investigate sensitive and complex areas of Indian cultural values, customs and practices under existing legislation have been exclusively handed over to the assessment of Indian tribes... We oppose the legislative acknowledgment of the concept.
Placement and Adoption of Foster Care
"Fostering" is defined as "any action that removes an Indian child from his parent or his Indian caregiver for temporary placement in an orphanage or institution or guardian's home or conservator where the parent or guardian of India can not return the child to the request but where parental rights have not been terminated ".
Partner Adoption v. Baby Girl
The Supreme Court issued a decision relating to the ICWA in the case of the Adoption V. Baby Girl Adaptation June 25, 2013. In the 5-4 opinion submitted by Judge Samuel Alito, the Supreme Court stated that the high standards required in under Ã, § 1912 (f) of the ICWA does not apply when the parent concerned has never had physical custody or child law.
In Alexandria re P.
In 2017 the Supreme Court refuses to intervene in the case of a Choctaw girl in a jurisdiction case involving female relatives and non-Indian couples who are trying to adopt the girl in question.
ICWA in popular culture
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