Transcript Indian Child Welfare Act - Citizens Equal Rights Alliance

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.
 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
 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
 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
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1934 - Assimilation policy abandoned.
IRA passed - preserve Indian culture, limited selfgovernment 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
 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
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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 1978
Codified as Title 25 Chapter 21 § 1901-1963
 Grant tribal courts jurisdiction over Indian child
custody proceedings
 BIA formulates guidelines for procedures
 Defines class status
ICWA objectives
 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
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
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ICWA requirements
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
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ICWA requirements
 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 family
2. Indian child’s tribal members
3. Other Indian families
ICWA requirements
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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
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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
 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?
 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
 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”!
 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 - ?
Questions
 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!
Questions
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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
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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
 Thanks for your attention
End