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.
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.
1970s – American Indian Policy Review Commission identified tribal concerns over the removal of Indian children by non-Indian child welfare practices.
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))
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”
ICWA requires state courts to employ expert witness before placement or termination of parental rights
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 organizationICWA requirements
Failure to comply with requirements can vacate a proceeding (adoption, placement, custody, malpractice suits)
Does this special legal status and treatment of Indian children violate the 14th Amendment which requires equal protection of the law?
Federal common law created the “Trust Doctrine” and “guardian-ward” doctrine. (Cherokee Cases)
Morton v Mancari 1974, decided the IRA’s Indian preference for tribal members is a “political” - not an impermissible racial classification.
Civil Rights Act of 1964 prohibits discrimination by race, color, religion, sex, or national origin.
Does ICWA require a race classification that can’t be deemed political?
Eligible or Enrollable category? - what constitutes the most widely used criteria for tribal membership?-blood quantum or ancestry!