Nearly fifty years after its passage, the Indian Child Welfare Act (ICWA) remains a vital part of the child welfare system to protect Native children and families. Since then, both federal and state law have incorporated provisions of ICWA for the benefit of all families in that system. However, ICWA itself is regularly disregarded and misunderstood by practitioners and judicial officers. This Essay describes the application of ICWA in the current child welfare system, as well as identifies programs designed to improve implementation of the law, all from the perspective of an appellate practitioner with twenty years of ICWA experience. While there is no magic wand to wave that can fix the persistent barriers to ICWA enforcement and implementation, the continued work of those committed to changing the current system creates solutions that can benefit Native families and, if history is any guide, ultimately all families.
¶14 Rather than answer that question, COCA took a detour. Relying primarily on a United States Supreme Court case, COCA determined that, if Parker never had a relationship with Child, the requirements of ICWA Sections 1912(d) and (f) would not apply. As the trial court never made a specific finding regarding the nature of Parker’s relationship with Child, COCA ordered the trial court on remand to make that finding. COCA then concluded if there was no relationship the State would not have to make the necessary showings under ICWA. Parker petitioned for certiorari, arguing that COCA misapplied federal and Oklahoma law regarding ICWA. We agree.
¶15 The ICWA Section 1912 requirements are intended to respect and preserve the tribes’ interest in the custody and care of its children, and the detrimental impact to a child of placement outside its culture, in addition to and independent of any parental custodial interest. Holyfield, 490 U.S. at 49-50. Oklahoma adopted the Oklahoma ICWA (OICWA) to clarify state policies and procedures used to implement the federal statutory scheme. After Holyfield, the Legislature amended the OICWA policy statement to recognize that “Indian tribes and nations have a valid governmental interest in Indian children regardless of whether or not said children are in the physical or legal custody of an Indian parent or Indian custodian at the time state proceedings are initiated.” 10 O.S. § 40.1. And the OICWA applies “to all state voluntary and involuntary child custody court proceedings involving Indian children, regardless of whether or not the children involved are in the physical or legal custody of an Indian parent or Indian custodian at the time state proceedings are initiated.” 10 O.S. § 40.3(B). We presume that the Legislature was aware of the previous statutory language and intended these amendments to change the statutes accordingly. In the Matter of Baby Boy L., 2004 OK 93, ¶ 18, 103 P.3d 1099, 1105-06. Thus, under OICWA, whether a parent has a relationship with the child is not determinative of the tribe’s independent interest.
¶16 This Court reinforced this policy in Baby Boy L. There, the non-Indian mother refused father’s attempts to be active in the baby’s life and sought a non-Indian adoption outside the reservation. Indian father objected to the adoption, and the tribe intervened, moving to dismiss the adoption and seeking ICWA compliance. The trial court applied a doctrine called the “existing Indian family exception.” This doctrine, applied in a minority of states, requires that for ICWA to apply a child must be living in an Indian home, or already have a primarily Indian cultural heritage, or are otherwise somehow culturally “Indian”, rather than applying the federal ICWA definitions of Indian children. This Court, interpreting the OICWA amended language, concluded that through the amendments the Legislature had explicitly repudiated the “existing Indian family” exception to ICWA, and that exception could not be applied under Oklahoma law. Baby Boy L., 2004 OK 93, ¶ 18, 103 P.3d at 1105-06.
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