Talk:Indian Child Welfare Act

Untitled
This article does not mention what all this act does. I specifically wish to know how it applies to Indian children placed in treatment facilities by the state. Near as I can tell, the facility would have to be 'owned, ran or directly approved by an Indian or the Tribe.' is this correct? Aarinfel (talk) 09:49, 18 December 2008 (UTC)

Picture of John Harrington
[duplicate entry deleted]

Picture of John Harrington
I disagree with posting a picture of astronaut John Harrington on this page, unless there is some direct connection between the topic (Indian Child Welfare Act) and Harrington himself. The fact that Harrington is an enrolled Chickasaw is not enough for inclusion here, unless there was a child custody proceeding where he was involved, either as the child, the parent, or a foster parent. —Preceding unsigned comment added by Broadcaster101 (talk • contribs) 02:47, 7 December 2009 (UTC)

Major revision / rewrite
I am in the process of expanding and rewriting this article. Please let me know if there are any concerns. GregJackP (talk) 02:37, 16 April 2010 (UTC)


 * GregJackP --


 * Thank you for your interest in ICWA and for the time you are spending rewriting this article. This is a subject I'm interested in, and I would like to collaborate with you.  I am reviewing some of your recent changes.   I will not edit on the mainspace but leave comments here for you for discussion as time permits. I am new to editing wikipedia, so I will take some time looking around and familiarizing myself.  Minor4th (talk) 17:47, 16 April 2010 (UTC)


 * Comment You describe ICWA jurisdiction:


 * ICWA sets the minimal Federal standards for nearly all Indian child custody proceedings, including adoption, voluntary and involuntary termination of parental rights, and removal and foster care placement of Indian children, but excluding divorce and child delinquency proceedings.


 * You could expand on the types of child custody proceedings that are excluded from ICWA jurisdiction by clarifying that "divorce" does not end at the initial child custody determination; it would include any further custody modifications between the parents.  It would also include custody determinations between two parents who were never married (and thus, never divorced).  In other words, ICWA does not apply to private child custody proceedings, except where there is a voluntary termination of parental rights and adoption.   It parallels when a state would be involved in a non-ICWA proceeding, if that makes sense.  Minor4th (talk) 19:22, 16 April 2010 (UTC)

Thanks, it will be great to have your help. (GregJackP (talk) 16:56, 19 April 2010 (UTC))


 * I like the way you reworked the headings. It looks better, but there still might be room for improvement.   Check out the Law article for an example of different use of headings.    I'll look for more examples that might be helpful.Minor4th (talk) 14:11, 22 April 2010 (UTC)

Comment  your discussion of the Existing Indian Family exception and the Holyfield case could use some clarification. You say:


 * In 1982, the Kansas Supreme Court held that the ICWA did not apply in a case of an "infant who has never been a member of an Indian home or culture, and probably never would be."[31]

What the court said was:


 * It was not to dictate that an illegitimate infant who has never been a member of an Indian home or culture, and probably never would be, should be removed from itsprimary cultural heritage and placed in an Indian environment over the express objections of its non-Indian mother. 

The Court goes on to say that under these circumstances the state court could have found good cause under the ICWA to deny transfer to tribal court, and in any event the mother could have and would have objected to the transfer, which would have defeated it. The Court did initially find that the ICWA did not apply, but then it goes on with an assumption that it does apply and finds that the lower court did not commit reversible error.Importantly, the child in this case could not be said to have resided or been domiciled on Indian land under any argument -- there was never a question of exclusive jurisdiction with the tribe. It is a poorly written and confusing opinion, and the unfortunate consequence was that a whole body of jurisprudence developed based on the fallacious "Existing Indian Family" exception. As a practical atter, there is probably still such an exception in play under identical factual scenarios but only as a means of declining to transfer a case to tribal court upon a finding of "good cause." It cannot be used as a means to refuse to apply the ICWA in contravention of the express language of the Act, and that is where Holyfield comes in.

You say:


 * Subsequent to the decision of the Kansas Supreme Court, the United States Supreme Court heard a similar case in Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30 (1989)[34] that in a similar set of facts, rejected the idea of the existing Indian family exception without specifically mentioning it.[32][33][35]

First, the facts in Holyfield were not really similar to the Kansas case. In Holyfield, the the parents lived on the reservation before and after the child was born. The mother simply left the reservation for a period to give birth off the reservation. It seems apparent from the case that she did this to deprive the tribe of jurisdiction. The case turns on the issue of domicile, which would trigger the exclusive tribal jurisdiction, and that is an important difference when compared to the Kansas case. The court found that because the mother lived on the reservation before and after the birth of the child, the mother was domiciled on the reservation and therefore so was the child. You're right the Supreme Court did not mention the EIF exception because it didn't need to ... but implicit in the ruling is a finding that the child was born into an existing Indian environment because that is where the mother was domiciled. I think it's incorrect to say that the EIF exception was rejected. Minor4th (talk) 14:58, 22 April 2010 (UTC)


 * clarification -- the Kansas case definitely got it wrong in saying the ICWA didn't apply and thus denying the tribe's intervention. However, their reasoning that it wouldn't have mattered if the tribe did intervene (because the mother would object to transfer) is proper, and the case could have and should have been decided on that basis alone.  I think what's important to note is the court did not create a blanket exception, but rather limited the exception to a particular fact situation when neither parent ever lived on the reservation.   As noted, the exception was wrong even in the limited application, and that's why the case was subsequently overturned.   There was no need for the exception -- the same result would have been reached under ICWA.  The Act has all the safeguards built in with "good cause" language and giving parents veto power when the tribe has concurrent jurisdiction. Minor4th (talk) 16:57, 22 April 2010 (UTC)

Comment Comment - I understand what you're saying about Wikipedeia standards but I have a problem with the inclusion of material that is known to be inaccurately interpreted by non-neutral sources. I think it would be better to say something like "some courts/sources have interpreted Holyfield to be an implicit repudiation of the EIF while others cite Holyfield as an endorsement of the exception". For endorsement, see In re Crews out of Washington. It's my opinion that Holyfield said neither of those things, but I haven't written any law review articles that you can cite. I will look around to see if there's a secondary source that might support this interpretation. In the meantime, it might serve to simply indicate that some sources have interpreted Holyfield as a rejection of EIF. That is both factually accurate and supported by secondary sources, and it does not state it so strongly as to suggest that the interpretation is correct. Minor4th (talk) 17:44, 22 April 2010 (UTC)
 * Kansas case / EIF Exception - I have reworked the first part discussing In re Baby Boy L. to reflect that the tribe's intervention was denied, but would have been harmless error in any event.
 * Holyfield - There are three citations that state that the Supreme Court "rejected" the EIF Exception implicitly in their ruling. Two of the cites are to books that are widely used in interpreting the ICWA (the NARF book and the Jones/Tilden book) while the third is a very recent law review article (2010) discussing the Baby Boy L. case being expressly overturned by the Kansas Supreme Court.  I believe that it is more correct under the Wikipedia standards on primary, secondary and tertiary sources.  While the use of primary sources, such as citing a legal case, is permitted, we are not to "make analytic, synthetic, interpretive, explanatory, or evaluative claims about material found in a primary source."  While your analysis of the case appears to be correct, it is in fact an analysis and prohibited as original research.  If there are secondary sources that state their analysis in a way follows yours, I would be happy to add that and modify that portion of the article.  It is not that I think that your analysis is incorrect or wrong, I just don't have any secondary sources to support that analysis.
 * I really appreciate your input, and think that it brings a tremendous amount of insight to the article, and I hope that you'll continue to provide your insight. (GregJackP (talk) 17:33, 22 April 2010 (UTC))
 * I've added tags to the two sentences involved so that others will be directed to this talk page for more information, and hopefully more sources will be forthcoming. GregJackP (talk) 17:48, 22 April 2010 (UTC)


 * comment That's one way .... You're stubborn :) I have a source for you, but it will take a couple of minutes to get it to you. Minor4th (talk) 17:53, 22 April 2010 (UTC)


 * Secondary source

" Holyfield has been relied upon by courts and parties both to support and reject the existing Indian family exception, …"

North Dakota Law Review THE EXISTING INDIAN FAMILY EXCEPTION TO THE INDIAN CHILD WELFARE ACT, Toni Hahn Davis 1993 69 N. Dak. L. Rev. 465 * —Preceding unsigned comment added by Minor4th (talk • contribs) 18:04, 22 April 2010 (UTC)

Another source


 * ''"Several states have created a judicial exception to coverage of the ICWA, primarily in the area of adoption, where the Indian child is being given up for adoption by the non-Indian biological parent. Referred to as theexisting Indian familyexception to the ICWA, these cases have ruled that the ICWA does not apply unless the child has been living in an Indian environment and is being removed from the Indian family. [93]


 * After Holyfield, some courts construed the decision quite narrowly and held that it did not affect their previous rulings creating the exception.[94]The most extreme application of theexisting Indian familyprinciple occurred recently in Washington, where the State Supreme Court ruled that the ICWA did not apply if the Indian child is not being removed from an Indian cultural setting, the natural parents have no substantive ties to a specific Tribe, and neither the parents nor their families have resided or plan to reside within a tribal reservation.[95] This decision essentially allows state courts to decide who isIndianenough for the ICWA to apply, and would have the effect of limiting application of the Act only to reservation-based Indian families.


 * Several other states have expressly refused to adopt such an exception.[97] The existing Indian family exception is in fact contrary to a line of ICWA cases holding that one purpose of the act is to give Indian children who have never lived in an Indian community an opportunity to develop their Indian identity.[98]. No resolution of these conflicting lines of cases is in sight. The United States Supreme Court has refused to review this issue despite at least four petitions for certiorari. Proposed amendments to the ICWA were drafted in 1987 to address this issue, but were not acted on because Congress wanted first to see what the Supreme Court would do with the issue.[99] Congressional Indian committees also believed that the Supreme Courts Holyfield decision had resolved the issue, but are now once again considering proposed amendments, given the continuing conflict."

'''[http://www.dshs.wa.gov/ca/pubs/mnl_icw/appendixA_5.asp Adoption and the Indian Child Welfare Act, Craig J. Dorsey. Youth Law News, November- December 1993]'''

Minor4th (talk) 19:09, 22 April 2010 (UTC)

added link Minor4th (talk) 19:15, 22 April 2010 (UTC)

Comment

Your most recent edit does not really make sense contextually. I think you left a word out or something. It is still rather slanted, as it implies the correct interpretation of Holyfield is the abandonment of the EIF exception, but that would be an incorrect reading of the case. I will clean it up if that would help. I will admit that my motive here is to help improve the article as much as possible because I would like to see it move through the peer review process and be promoted. I'm not sure you saw the second source I listed above. If you think it would help or it if makes you more comfortable, I will look for additional sources to cite.

You state:


 * In the intervening years, approximately half of the states adopted this exception despite the fact that the language appeared no where the text of the ICWA.[32][33]

I'm not sure what "intervening" is referring to.


 * Subsequent to the decision of the Kansas Supreme Court, the United States Supreme Court heard a similar case in Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30 (1989)[34] that in a similar set of facts, rejected the idea of the existing Indian family exception without specifically mentioning it.[32][33][35]

This is not correct. It may be the case that lower courts rejected the EIF based on their interpretation of Holyfield but your statement, as written, is not accurate.


 * The Holyfield case seemed to turn the tide on this exception, not by expressly discussing the exception, but by being cited by lower courts that use the decision as a basis of rejecting the exception.[32][33][35] 

This is closer to accurate, although your use of an active verb after Holyfield again implies that the case actually stands for the rejection of the EIF exception, which is not the case. I would reword this as such: "Following the Holyfield case, many jurisdictions abandoned the EIF exception, interpreting Holyfield as implicitly rejecting the exception"   or words to that effect.


 * This view is disputed by some earlier sources, which have stated: Surprisingly, Holyfield has been relied upon by courts and parties both to support and reject the existing Indian family exception, which has been invoked in proceedings involving Indian children and families who are living off the reservation and who are, therefore, subject to state court jurisdiction concurrent with that of the tribal court.[36]

Your wording is dismissive of the legitimacy of this source. It is a fact that Holyfield has been cited as both supportive of the EIF exception and as implicitly rejecting it. There is no dispute that it has been interpreted differently by different jurisdictions. I'm not sure why you state that this is a disputed view. I think this section of the article would be improved by a neutral discussion of the evolution of the EIF and how it was expanded beyond the Kansas case that first discussed it. At a point, and prior to the Holyfield case, the exception was so broadly applied in some jurisdictions that it did not even resemble the exeption as it was stated in Kansas. Holyfield's real application on the EIF exception was the court's firm conclusion that the ICWA is plain on its face and should not be amended judicially through unnecessary and improper construction of an unambiguous statute. You could conclude with a survey of the current status of the exception among the several jurisdictions, as well as proposals for legislative amendments clarifying the issue.Minor4th (talk) 01:39, 23 April 2010 (UTC)


 * Comment -- Jones, The Indian Welfare Act Handbook-- this is one of the sources you have cited a number of times.  Although the author first states that "notwithstanding the clear language of Holyfield repudiating the exception ...."  so this source seems to be a little biased in its reading of Holyfield.   Nevertheless, on p. 32 of this book, in referencing the status of the EIF exception, the author notes:


 * It is apparent that this area of the law is in a state of flux, and practitioners are cautioned to review their state court decisions to determine whether ICWA applies to a particular fact situation.


 * The book discusses the Crews decision out of Washington, a more recent case, and notes that the court cites Holyfield to support the survival of the EIF exception.  The author also references court rulings from Oklahoma, Alabama and South Dakota where the EIF exception is still alive and well following Holyfield.   Whether the Crews case and cases like it are right or wrong, it remains the case that Holyfield is interpreted differently by different jurisdictions, and the Supreme Court has not clarified its position.Minor4th (talk) 01:59, 23 April 2010 (UTC)

______________________________________________________________ I came across this page by accident and noticed the discussion regarding the EIF. Here's a quote from a recent South Carolina Supreme Court case which was decided on 26JUL2012:
 * Did you give up?Minor4th (talk) 15:12, 2 May 2010 (UTC)

"Given that its policy conflicts with the express purpose of the ICWA, we take this opportunity to reject the "Existing Indian Family" doctrine (the "EIF"). See Note, The Indian Childs Welfare Act of 1978: Does it Apply to the Adoption of an Illegitimate Indian Child?, 38 Cath. U. L. Rev., 511, 534 (1989) ("In light of the legislative history of the ICWA, the existing Indian family theory is thus contrary to the intent of Congress." (footnotes omitted)). The EIF is a judicially created exception to the application of the ICWA. See In the Matter of the Adoption of Baby Boy L., 643 P.2d 168, 175 (Kan. 1982), overruled by In the Matter of A.J.S., 204 P.3d 543 (Kan. 2009) (holding the purpose of the ICWA "was not to dictate that an illegitimate infant who has never been a member of an Indian home or culture, and probably never would be, should be removed from its primary cultural heritage and placed in an Indian environment over the express objections of its non-Indian mother"). In so holding, we join the majority of our sister states who have rejected the EIF or have since abandoned the exception. See In the Matter of A.J.S., 204 P.3d at 548–49 (listing the states that have rejected the EIF)."

Here's a direct quote from "In the matter of A.J.S.":

"The existing Indian family doctrine, first adopted in In re Adoption of Baby Boy L., 231 Kan. 199, 643 P.2d 168 (1982), is abandoned." _____________________________________________________________ — Preceding unsigned comment added by 76.255.89.78 (talk) 23:34, 18 August 2012 (UTC)

Large chunk of info without a home
I temporarily removed the following large chunk of material from the article, not because it doesn't belong, but because it was free-floating under a subheading "Foster placement and adoption" -- but it does not related to that heading. I'm preserving the material here so editors can insert it in proper places within the article. Much of the info seems to be already covered, but not all of it. I do not have time to tackle this right this moment, but I will come back to it and work on it if no one else is interested.

The following is the material I temporarily removed:


 * Although there may be some ambiguity concerning the first two exceptions, there is little when it comes to the good cause exception. Good cause can be defined as:


 * 1) The request of the biological parents or the child when the child is of sufficient age. Both parents have to make this request in order for it to be valid.
 * 2) The extraordinary physical or emotional needs of the child as established by testimony of a qualified expert witness.
 * 3) The unavailability of suitable families for placement after a diligent search has been completed for families meeting the preference criteria.


 * The first good cause exception would apply to foster care placement proceedings because the parents have not terminated their rights and therefore can still act as a parent. In cases of Indian adoption, the parents have obviously given up their parental rights or they have been terminated.


 * The second would become involved when the child is in need of "highly specialized treatment services that are unavailable in the community where the families who meet criteria reside."


 * The third good cause exception cited by the guidelines would be in reference to "a diligent search." A diligent search would be defined as "at a minimum, contact with the child's tribal social services program, a search of all county or state listings of available Indian homes, and contact with nationally known Indian programs with available placement resources."


 * Other instances of good cause would be: bonding with the proposed adoptive parents (so as to not actively disrupt the child's life), the need for stability, the willingness of the adoptive family to expose the child to his or her Indian culture and traditions, the child's lack of ties to the tribe. The last reasoning is up for discussion as it obviously serves as an active threat to the tribe.


 * The Indian child's tribe may request the transfer of a child's custody proceeding from a state court to the tribal court when an Indian child does not reside or have domicile upon tribal lands. ICWA states this transfer must be made, unless either parent objects or “good cause” exists not to make the transfer. The term domicile can be defined as the place the Indian child's parents are living during the time the Indian child in question was born.


 * By defining domicile, courts have been able to rule out ambiguity when it comes to where the Indian child is domiciled. The main conflict that would come into question would be if the child in question was born outside of the federal tribal lands (such as the reservation). For example if Indian parents took care to have their child off of the reservation, the ICWA still has jurisdiction over the placement of that child when it comes to the adoption of that child, as opposed to state law.


 * If a transfer is denied and parental rights are terminated, ICWA indicates where an Indian child is to be placed:  with extended family first;  then other members of the tribe; then other Indians who are not members of the tribe; and finally non-Indians. As with transfers, the ICWA includes a "good cause" exception to the statutory placement preferences, and state courts are split in their interpretation of good cause.  (§ 1915)


 * ICWA allows parents of Indian children to voluntarily waive parental rights to a court “of competent jurisdiction,” i.e., either tribal court when the child is domiciled on tribal lands or state court when the child does not and the tribe has not successfully transferred the case to the tribal court. ICWA requires that the parents be informed in writing about the full implications of the ICWA.  It also decrees that the termination cannot be made prior to birth or within ten days after birth.  The ICWA further allows either parent to withdraw consent of the adoption up until a final decree of termination of rights or adoption is issued.  Finally it allows the birth parents to petition the court to vacate the adoption within two years if the adoption decree was made under fraud or duress. (§ 1913)


 * In placement of Indian children, the act allows adoption priority to be given in the order of the child's extended family, the child's tribe members, and then to Indian families in general.


 * Another provision requires the Federal government, states and other tribes to give “full faith and credit” to the decisions made by a tribal court. (§ 1911). The ICWA also provides funding for child and family programs, such as family assistance, educational programs and legal council in ICWA litigation.   Further, the ICWA allows tribes under Public Law 280 to exercise child custody jurisdiction even though they would not typically enjoy this jurisdiction.   The final clause of the ICWA states that even if the courts find a portion of the ICWA unconstitutional, the full body itself would not be deemed unconstitutional. (§ 1963)


 * Tribal guidelines towards becoming an adoptive family of an Indian child can be liberal. For example, the Cherokee Nation, has guidelines as follows:
 * A person can become an adoptive parent even if that person is a single adult, divorced, does not own his or her own home, lives with other family members, is a working mother, is over 40 years of age, earns a modest income and/or has a disability. These guidelines open up the doors to so many more adoptive families and allows Indian children to find good homes.

Minor4th  05:47, 5 August 2014 (UTC)

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Portions of the Indian Child Welfare Act struck down as unconstitutional
Refer to https://www.texasattorneygeneral.gov/sites/default/files/images/admin/2018/Press/ICWA%20summary%20judgment%20order.pdf stricking down portions of the Indian Child Welfare Act as unconstitutional. Article will need considerable updating in light of this. Safiel (talk) 05:41, 6 October 2018 (UTC)

Randall Kennedy's critique of the ICWA
This critique, found in Interracial Intimacies, should probably be included somewhere. Eldomtom2 (talk) 14:06, 11 November 2022 (UTC)