Our own Kate Fort has posted her paper, “Observing Change: The Indian Child Welfare Act and State Courts,” published in the New York State Bar Association Family Law Review earlier this year. It is available on SSRN.
Here is her abstract:
ICWA is one of the foundational laws of federal Indian law, but it usually arises in the broader public consciousness when there is a voluntary adoption subject to the law. Recently, the law was subject to Supreme Court review in Adoptive Couple v. Baby Girl. A heart-wrenching case, but ICWA is far more regularly applied in abuse and neglect cases. Any involuntary removal of an American Indian child, as defined by the Act, requires the application of ICWA. While cases of voluntary adoptions designed to thwart the requirements of ICWA require constant vigilance from states and tribes, the law provides broader protections for those families in the state child welfare system.
This article posits one way to both collect data about abuse and neglect compliance within the framework of ICWA, and increase that compliance through collaborative change to the systems. QUICWA, a project by the Minneapolis American Indian Center, consists of a group of interested stakeholders who have created a checklist to measure what happens in each individual hearing where the court must apply ICWA. While other groups, such as the National Council of Juvenile and Family Court Judges, use a different checklist format, the goal of the projects are similar — to find ways to increase compliance with ICWA. Funded in collaboration with Casey Family Programs, law schools and social work programs in key states have started observing ICWA hearings using the QUICWA checklist. In Michigan, the Michigan State University College of Law has observed ICWA hearings in three counties, using law students as observers. Though family law is driven by narrative, collecting data is vital to identify patterns surrounding fairness and due process in the individual stories.