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Indian Child Welfare Act. Is it Constitutional? Questions from a confused layman. federal government formed – took Indian relations away from colonies/states – treaties and Indian policy became exclusively federal.

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Indian Child Welfare Act

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Indian child welfare act

Indian Child Welfare Act

Is it Constitutional?

Questions from a confused layman

Background 1700 s

  • federal government formed – took Indian relations away from colonies/states – treaties and Indian policy became exclusively federal.

  • Constitution: Article I, § 8, cl. 3 Indian Commerce Clause. Article II, § 2, cl. 2 Treaty clause. Seen as justification and authority to single out tribal Indians living on or near reservations for special treatment.

Background - 1700’s

Background 1800 s

  • Assimilation period

  • 1830 Indian Removal Act - reduction of land base

  • 1887 Dawes Act - reduced land base for citizenship

  • Citizenship and assimilation accelerated by boarding school education - removal of children from the Indian family

Background - 1800’s

Background 1800 s continued

  • Boarding school education had broad support at the time.

  • Assimilation required suppression of Indian culture

  • Considered compassionate program.

  • Operated to 1930’s until the passage of the IRA.

Background - 1800’s continued

Background 1900s

  • 1934 - Assimilation policy abandoned.

    • IRA passed - preserve Indian culture, limited self-government and economic development.

  • 1954 to 1966 - termination and relocation period. Tribal Indians relocate to off reservation urban areas.

  • 50 to 60% of Indians live outside reservations.

  • Tribes began to see population out-flows and more intermarriage with non-Indians. Tribes fear loosing cultural cohesiveness.

Background – 1900s

Background 1900 s continued

  • 1970s – American Indian Policy Review Commission identified tribal concerns over the removal of Indian children by non-Indian child welfare practices.

  • Tribes complained removals were generally unwarranted, culturally incentive and inappropriate and racially discriminatory,

Background – 1900’s continued

Indian child welfare act of 1978 codified as title 25 chapter 21 1901 1963

Intended purpose:

  • End Indian child custody removals that are unwarranted,

  • “to protect the Indian child as a resource for Indian communities..”

  • Protect the integrity of the Native American family

  • Protect the unity of Indian Nations

  • Preservation of the Native American heritage

  • End Americanized, culturally insensitive child care standards

  • Reject non-Indian values like “rugged individualism” in favor of community based family structures

Indian Child Welfare Act of 1978Codified as Title 25 Chapter 21 § 1901-1963

Icwa objectives

  • Grant tribal courts jurisdiction over Indian child custody proceedings

  • BIA formulates guidelines for procedures

  • Defines class status

ICWA objectives

Icwa definitions

  • Indian child = unmarried person under age 18 who is a member of a tribe or eligible for membership and the biological child of a tribal member. (Sec. 1903(4))

  • Child custody proceedings = voluntary and involuntary termination of parental rights, adoption placement, status decisions, and divorce custody proceedings

ICWA definitions

Icwa requirements

  • Tribes determine their membership requirements – burden on tribes to invoke ICWA and provide sufficient evidence that a child custody proceeding exists and that proceeding involves an “Indian child”

  • Court defers proceedings to tribal courts. Federal Indian policy determined that tribal courts better situated and appropriate to determine the best interests of Indian children.

  • Jurisdiction: on res. = exclusive / Off res. = concurrent

ICWA requirements

Icwa requirements1

  • Tribal courts can decline transfers

  • State courts can retain jurisdiction for off reservation domiciled Indian children under some circumstances

  • State courts burdened with myriad of notification requirements to tribes

  • State agencies required to show “active” efforts to keep Indian families intact prior to outside placement of an Indian child

ICWA requirements

Icwa requirements2

  • ICWA requires state courts to employ expert witness before placement or termination of parental rights

  • State courts required to follow ICWA adoptive placement preferences:1. Indian child’s extended family2. Indian child’s tribal members3. Other Indian families

ICWA requirements

Icwa requirements3

  • State court placement preferences for foster care or preadoptive placement:

    1. Indian child’s extended family

    2. Indian run foster home licensed or approved by Indian child’s tribe

    3. Non-Indian foster home approved by the tribe

    4. Institution for children approved by the tribe or operated by an Indian organization

ICWA requirements

Icwa complaints

  • Failure to comply with requirements can vacate a proceeding (adoption, placement, custody, malpractice suits)

  • Burden on state social services to comply

  • Burden on non-tribal courts to enforce compliance

  • Racial classification or political association?

  • Provisions of the 14th Amendment for equal protection under the law – a Constitutional breech?

ICWA complaints

Is the icwa is unconstitutional

  • Does this special legal status and treatment of Indian children violate the 14th Amendment which requires equal protection of the law?

  • Does the ICWA violate the requirements of prohibitions against racial discrimination?

Is the ICWA is unconstitutional?

The special treatment begins

  • Federal common law created the “Trust Doctrine” and “guardian-ward” doctrine. (Cherokee Cases)

  • Congress empowered Indian Office to create Indian preference employment under 1934 IRA.

The “special treatment” begins

The supreme court said no

  • Morton v Mancari 1974, decided the IRA’s Indian preference for tribal members is a “political” - not an impermissible racial classification.

  • The Court affirmed power of Congress to legislate Indian policy through the Commerce Clause and the Treaty Clause of the Constitution.

The Supreme Court said “No”!

The ussc says no

  • Civil Rights Act of 1964 prohibits discrimination by race, color, religion, sex, or national origin.

  • Special treatment of Indians allowed when policy is “rationally” tied to fulfillment of the Indian trust obligation.

  • Could the ICWA present an opportunity challenge to Morton v Mancari?

The USSC says No!


  • Does ICWA require a race classification that can’t be deemed political?

  • ICWA defines “Indian Child”- unmarried under 18 years of age – racial?- member of an Indian tribe – perhaps?- eligible for membership in a tribe - ?- biological child of a tribal member - ?



  • Eligible or Enrollable category? - what constitutes the most widely used criteria for tribal membership?-blood quantum or ancestry!

  • Biological child category?- blood quantum or ancestry!


My questions

  • Do group rights supersede individual rights?

  • Can a US citizen be saddled with legal obligations to a government body starting in the womb?

  • Should federal government trust obligations to Indians tribes trump parental rights?

  • Can children be classified as a community resource?

  • Whose interests are protected – community or child?

  • Is finding a child enrollable or eligible for ICWA “child custody proceedings” racial discrimination?

My Questions

My questions1

Is racial and legal quality served when we:

  • define Indian children as a community resource?

  • remain legally obligated to preserve Indian Nations?

  • are legally liable to protect a group’s culture?

  • say individual rights are inappropriate for some?

  • codify policies in conflict with core Constitutional principals like personal sovereignty and individual rights rather than group or community based rights?

My Questions

Indian child welfare act

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