Facing the Future

Facing the Future: The Indian Child Welfare Act at 30

Matthew L. M. Fletcher
Wenona T. Singel
Kathryn E. Fort
Copyright Date: 2009
Pages: 299
https://www.jstor.org/stable/10.14321/j.ctt7ztcpg
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  • Book Info
    Facing the Future
    Book Description:

    The U.S. Congress is charged with responsibility for the protection and preservation of American Indian tribes, including Indian children. In 1978, Congress enacted the Indian Child Welfare Act (ICWA), with the intent to "protect the best interests of Indian children and to promote the stability and security of Indian tribes and families." ICWA sets federal requirements that apply to state child custody proceedings involving an Indian child who is a member of or eligible for membership in a federally recognized tribe. ICWA also sets out federal requirements regarding removal of Indian children and their placement in foster or adoptive homes, and it allows the child's tribe to intervene in the case.The history of the Act is a tangle of legal, social, and emotional complications. Some state courts have found unusual legal arguments to avoid applying the law, while some states have gone beyond the terms of the Act to provide greater protections for Indian people. This collection brings together for the first time a multidisciplinary assessment of the law-with scholars, practitioners, lawyers, and social workers all offering perspectives on the value and importance of the Indian Child Welfare Act.

    eISBN: 978-1-60917-420-0
    Subjects: Sociology, Law

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. Foreword
    (pp. vii-x)
    Michael D. Petoskey

    Human life is sacred, as is all life. New, helpless life comes into this world and is dependent on our care. What will we do to ensure that each new human being is given the opportunity to reach his or her full potential? Each child deserves love and nurturing. It is our obligation as parents, family, and community to ensure that each is loved and nurtured. The Creator would have it be so.

    For us as Indians, much is at stake, because it is about nurturing community and culture, while honoring our traditions. After all, we are fond of saying:...

  4. Acknowledgments
    (pp. xi-xii)
  5. Introduction: Indian Experience and Randall Kennedy’s Mythology
    (pp. xiii-2)
    Matthew L. M. Fletcher and Wenona T. Singel

    Randall Kennedy offered a stinging indictment of the Indian Child Welfare Act in the final chapter of his 2003 bookInterracial Intimacies: Sex, Marriage, Identity, and Adoption.¹ The eleven other chapters in his book offer no discussion whatsoever of American Indian law and policy, making the final and twelfth chapter appear a little out of place. But as Martha Minow’s work implies, the reason for the special chapter is the special character of American Indian law—Indians are different, an exemption, requiring a separate argument.² The relevant portion of Professor Kennedy’s work offers a rejection of racial matching of children...

  6. Working on the Front Lines: The Role of Social Work in Response to the Indian Child Welfare Act of 1978
    (pp. 3-12)
    Suzanne L. Cross, Angelique G. Day and Emily C. Proctor

    The social-work role, attitudes, patterns of response, and timeliness are vital to compliance with the Indian Child Welfare Act (ICWA).¹ This requires professional social workers to be knowledgeable about ICWA, the doctrines in place designed to circumvent the process, and cultural competency to make appropriate decisions that have life-altering and lifelong impact on American Indian children, their families, and ultimately, tribal communities. In addition to the need and support for an excellent ICWA training program for all agency administrators and social workers, a mechanism is required to ensure that the information gained from training will be supported and implemented for...

  7. The Indian Child Welfare Act of 1978 and Its Impact on Tribal Sovereignty and Governance
    (pp. 13-27)
    Terry L. Cross and Robert J. Miller

    Sovereignty, simply stated, is the right of a political entity to govern its own affairs. American Indian tribes are recognized as having inherent sovereignty as political units that predate the existence of the United States. For tribal nations, like states, this sovereignty is shaped and limited by federal law and exercised through the structures of governance. One area clearly retained by tribes is the right to govern the relationships between the tribe and its citizens, the relationships among tribal members, and between tribal members and others they relate to domestically or in business interactions. This area, known as civil regulatory...

  8. ICWA and the Commerce Clause
    (pp. 28-49)
    Matthew L. M. Fletcher

    Despite the fact that the Indian Child Welfare Act¹ (ICWA or Act) is a monumental piece of legislation—it affects every Indian child born in the United Statesandit serves as one of the most stinging rebukes of states’ rights by Congress in the twentieth century—the Supreme Court has decided only one case involving the Act. That case,Mississippi Band of Choctaw Indians v. Holyfield,² did not address any challenges to the constitutionality of the Act. But in the years sinceHolyfield, a few state courts and a few commentators have expressed doubts as to the constitutionality of...

  9. Reparations, Self-Determination, and the Seventh Generation
    (pp. 50-110)
    Lorie M. Graham

    Indigenous teachings on law and family help define our responsibility toward future generations—how the decisions that we make today can impact the well-being of each generation to come. This message is particularly relevant in this time of climate change, warfare, and lack of respect for basic human rights. So too is it an important message as we reflect upon the thirtieth anniversary of the Indian Child Welfare Act of 1978 (ICWA) and look forward to the future, as the title of the book suggests we do. We are just over one generation removed from this landmark legislation—legislation that...

  10. A Practitioner’s View from Thirty Years on the Cutting Edge of the Indian Child Welfare Act
    (pp. 111-126)
    Mary Jo B. Hunter

    When I started my career as an attorney (circa 1982), I spent a lot of time defending people for entrusting their children to the care of their extended family members or to the grandparents of the children. Now, the social scientists, social workers and child protection workers have come to accept and respect the practice that has been a traditional aspect of Native families for generations. Yet, in 1978, Congress had to enact the Indian Child Welfare Act so that such cultural norms were respected prior to removing Indian children or placing the children once they had been removed from...

  11. Differing Concepts of “Permanency”: The Adoption and Safe Families Act and the Indian Child Welfare Act
    (pp. 127-147)
    B. J. Jones

    The above is from a letter written by a Native child in South Dakota to her parents after a termination of parental rights pursuant to the Adoption and Safe Families Act. This letter was offered by a grandmother of an Indian child to the South Dakota Indian Child Welfare Act Commission in support of her testimony during a listening session on the Rosebud Sioux Indian Reservation on September 17, 2004.

    “Permanency” is all the rage in the child protection arena lately. Congress, bolstered by statistics pointing to long stays for children in the foster care systems operated by state and...

  12. The Disconcerting Vicissitudes of State Judicial Power: Determining If Good Cause Exists to Deny Transfer in ICWA Cases
    (pp. 148-163)
    Allie Greenleaf Maldonado

    John Wildhorse called his daughter over and over again by her Indian name, Waboose, which means rabbit in Odawa; but she didn’t turn her head and look at him until he spoke the name given to her by the foster family, Jane. How would the Creator hear his daughter’s prayers if she couldn’t tell the Creator that it was her, Waboose, praying? John stroked her hair and thought about how much it hurt to have missed her birth. He was in jail for a third drunk-driving offense when she was born, and Waboose’s mother was a poly-drug user; the social...

  13. Keeping It in the Family: The Legal and Social Evolution of ICWA in State and Tribal Jurisprudence
    (pp. 164-220)
    Lorinda Mall

    Rose, a Navajo woman, was adopted in the early 1960s by a white couple.¹ She grew up in San Francisco, and by her late twenties she was fighting a losing battle with drug addiction. As a child she never quite fit in, and these struggles climaxed when she was put into a drug-addiction program and her children were taken away by Social Services. Because the Indian Child Welfare Act² (ICWA) was passed in 1978, the social worker assigned to her case discovered Navajo relatives with whom to place the children. ICWA mandates that social workers determine whether a child is...

  14. Holding Back the Tide: The Existing Indian Family Doctrine and Its Continued Denial of the Right to Culture for Indigenous Children
    (pp. 221-234)
    Aliza G. Organick

    While a long time in coming, the tide has turned when it comes to recognizing the self-determination rights of indigenous people across the world. The most dramatic example of this trend is the recent passage of the United Nations Declaration on the Rights of Indigenous Peoples (the Declaration).¹ The passage of the Declaration is the culmination of over twenty years of work, and while not legally binding, it is a reflection of the world community’s commitment to the protection of indigenous peoples’ rights.² Disappointingly, four UN member nations with significant indigenous populations did not vote for passage of the Declaration...

  15. A Decade of Lessons Learned: Advocacy, Education, and Practice
    (pp. 235-244)
    Le Anne E. Silvey

    The Indian Child Welfare Act of 1978 (ICWA), P.L. 95-608, was enacted due to the alarmingly high rate and often unwarranted removal of American Indian children from their families of origin. As a federal statute, ICWA supersedes state laws that govern the removal and placement of children in child protective proceedings. The legislative history behind the enactment of P.L. 95-608 describes the need for the rights and protection of American Indian children, their families, and the federally recognized tribes of which the children are members or eligible for membership.¹

    Prior to the passage of ICWA, American Indian children were being...

  16. Where Have All the Children Gone? When Will They Ever Learn?
    (pp. 245-269)
    Maylinn Smith

    Every tribe is one generation away from cultural and political extinction. Without a critical mass¹ of children, meaningful tribal acculturation cannot occur. Gone are the tribal languages.² Gone is the knowledge regarding the protection and use of medicinal native plants.³ Gone are ceremonies for welcoming a child into this world.⁴ Gone are the rituals connected to puberty, rites of passage, and physical and psychological healing.⁵ Gone are the rich oral histories and indigenous knowledge reflecting hundreds upon hundreds of years of existence on tribal homelands within the area now known as North America.⁶ Gone is the understanding of what it...

  17. In Defense of ICWA: The Constitution, Public Policy, and Pragmatism
    (pp. 270-292)
    Carol L. Tebben

    The Indian Child Welfare Act (ICWA or the Act) was passed by the United States Congress in 1978, largely as an acknowledgement of failed national and state policies concerning tribal nations and their children.¹ Congress found that

    An alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions . . . .²

    The Act is a detailed statute that imposes exacting standards upon the state when...

  18. Contributors
    (pp. 293-299)