Indian Child Welfare Act

Colorado Supreme Court ICWA Case — In the Matter of J.C.T.

Matthew L.M. Fletcher

From Jill Tompkins:

Today the American Indian Law Clinic won its appeal in the  Colorado Supreme Court in a case concerning a contested guardianship of an American Indian child, In the Matter of J.C.T..  The Court reversed the decision of the Court of Appeals and upheld the rulings of the Denver Probate  Court finding that it was an appropriate exercise of the Probate Court’s authority to consider the potential of a prospective guardian to be an adoptive parent.  This decision will allow the boy to finally be adopted after being under various guardianships for 10 years. Ann Rhodes, ’07, did an outstanding job of briefing the case on the boy’s tribe’s behalf  (I argued it).   Maggie Wetmore, ’05 was the student attorney who handled the complex trial-level work.

Here’s a link to the opinion.

Congrats to Jill and her students!

Iowa Supreme Court Strikes Down Portion of Iowa ICWA

Matthew L.M. Fletcher

In In the Interest of A.W. the Iowa Supreme Court held that the Iowa ICWA‘s definition of “Indian child” violated the Equal Protection Clause. The definition included Indian children who were not eligible for membership in any tribe (“‘Indian child’ or ‘child’ means an unmarried Indian person who is under eighteen years of age or a child who is under eighteen years of age that an Indian tribe identifies as a child of the tribe’s community.“, Iowa Code 223B.3.6), or what the Court referred to as “ethnic Indians.” In doing so, the Court held that the trial court order allowing the intervention of the Winnebago Tribe of Nebraska was invalid.

A video of the oral argument before the Iowa Supreme Court can be viewed here.

Barbara Atwood (Arizona) on ICWA

Matthew L.M. Fletcher

Barbara Atwood has just posted, “The Voice of the Indian Child: Enhancing the Indian Child Welfare Act through Children’s Participation” on SSRN.

From the abstract:

This essay explores the promise and challenge of giving more prominence to the child’s voice in ICWA proceedings in state courts. I identify legal sources of the child’s right of participation in statutory provisions, constitutional law, the UN Convention on the Rights of the Child, and tribal law. The Essay also explores the considerable challenges facing representatives for children who are the subect of ICWA proceedings. Using selected cases for illustration, I argue that incorporating children’s views in the ICWA calculus would move ICWA litigation toward a culture of respect for the dignity of each child and would enrich the decision-making of state court judges.

Indian Children Overrepresented in Foster Care

Matthew L.M. Fletcher

From Indianz:

Report: Too many Native children in foster care
Tuesday, November 20, 2007

American Indian and Alaskan Native children are overrepresented in the foster care system, according to a report released on Monday.

“Time for Reform: A Matter of Justice for American Indian and Alaskan Native Children” is a joint report from the National Indian Child Welfare Association and the Kids Are Waiting campaign of The Pew Charitable Trusts. It examined child welfare data across the nation. According to the report, Native children are overrepresented in the foster care system at more than 1.6 times the expected level. Native children are more likely to be considered victims of neglect than any other racial or ethnic group. In Alaska, Native children are 51 percent of foster care cases but only 20 percent of the child population. In Montana, Native children are 33 percent of foster care cases but only 10 percent of the child population. The report calls on Congress to authorize tribes to receive funding under Title IV-E of the Social Security Act, an entitlement program that reimburses states for a portion of foster care costs. States receive billions of dollars under the program.

Get the Story:
American Indians overrepresented (The Salt Lake Tribune 11/20)

Relevant Documents:
Report | Press Release

Relevant Links:
National Indian Child Welfare Association – http://www.nicwa.org

Patrice Kunesh on ICWA: “Borders Beyond Borders”

Matthew L.M. Fletcher

Patrice Kunesh (South Dakota Law) has posted “Borders Beyond Borders: Protecting Essential Tribal Relations Off Reservation Under the Indian Child Welfare Act” on her BEPRESS Selected Works site.

Patrice presented her paper at the 3rd Annual Indigenous Law Conference, “Facing the Future: The Indian Child Welfare Act at 30.”

Abstract:

2008 is the thirty year anniversary of the enactment of the Indian Child Welfare Act (ICWA), one of the most dynamic pieces of legislation in federal Indian affairs that irrevocably changed the jurisdictional prerogatives of states and tribes. ICWA’s tribal wardship provision is remarkably constructive because it vests tribes with exclusive jurisdiction over Indian children who are wards of the tribal court–irrespective of the child’s domicile. This jurisdictional scheme, a rough mixture of territorial and personal criteria, defies the normative notions of state court jurisdiction over family relations. And the cross-hatching of state and tribal interests in off-reservation child welfare matters has engendered serious tension and questions about the precise contours of tribal sovereignty and the boundary line between state and tribal power.

This article investigates the transformation point between tribal and state jurisdiction over Indian child welfare matters. From an examination of the historical development of tribal wardship decisions and ICWA’s legislative history, material unexamined in this context in other scholarship, I posit that tribes, as unique political entities in our federal system of government, possess inherent attributes of sovereignty to regulate their internal social relations. ICWA is premised on the dual nature of tribal sovereignty, and allows, if not encourages, tribes to redefine their relationship to state governments by recognizing that the power to adjudicate internal matters, including child custody matters, derives from a source independent of the land. Thus, there are no real boundaries to protecting these essential tribal relations where the exercise of tribal authority is vital to the maintenance of tribal integrity and self-determination.

WaPo: Aurene Martin on ICWA

Matthew L.M. Fletcher

Whose Best Interest?
Monday, October 15, 2007; A14

Regarding the Oct. 9 editorial “A Tribal Question”:

The Indian Child Welfare Act (ICWA) provides protections to Native American children to prevent their unnecessary removal from their families, but it does not prevent them from receiving the help necessary to protect their best interests.

The ICWA was passed in 1978 in response to the staggering number of children being removed from their homes, the vast majority of whom were placed out of their communities and lost their connection to their tribes.

Unfortunately, most attorneys and courts don’t learn about the ICWA until it is too late. Once confronted with its requirements, they find that they have failed to meet its standards.

Most tribes understand this and are willing to work with authorities to make sure that the children involved receive the best care possible. Although tribes would like to place children within their communities, they first prefer that children are placed with family members.

Given the facts that the editorial reported, I find it hard to believe that any court would find that it is in the best interest of those children to be returned to their parents.

AURENE M. MARTIN

Washington

The “Guide” to the Indian Child Welfare Act

Matthew L.M. Fletcher

From the Native American Rights Fund. Check it out. You can access the Guide here as well.