Jan 12, 2018 in Law

Indian Child Welfare Act (ICWA)

During the 1970s, the native communities were facing heavy crisis whereby the indigenous children were taken away from their nations, families and territories. This prompted the indigenous people’s movement for self-determination within the United States to spring into action, as a response to this crisis. In response to the crisis facing Indian communities, the Association of American Indian Affairs conducted surveys throughout the country in the year 1974. The surveys revealed that up to 25 to 35% of native children had been separated from their homes and families and were living in foster homes and adoptive care institutions.

Researchers and community advocates conducted empirical and anecdotal studies, which revealed that there were two main causes of their problem. One of the leading problems was the fact that boarding schools and their programs within the United States heavily encouraged the separation of native families. This is because the number of native children enrolled in boarding schools within the United States was quite significant. The other factor promoting the separation of native children from their families was culturally incentive child welfare laws used to remove native children from their homes at the regional level. The removal of native children from their homes took place at an alarmingly higher rate than that of non-native children.

The problem of the removal of indigenous children from their homes affected most indigenous nations. This is due to the reason that the nations were losing thousands of their children resulting in a cultural genocide. This problem brought the United States government under immense pressure and hence addressed the native child welfare law. As a response, the United States government resulted into the enactment of the federal Indian Child Welfare Act. The Indian Child Welfare Act established procedural legal laws that were substantial at the national level to control the child custody proceedings among indigenous children.

The Indian Child Welfare Act also strengthened the native courts, which acted as the judicial branch of the native governments. This is from the fact that the native courts had complete control over Indian children custody proceedings. The federal act also reduced the removal of indigenous children from their indigenous homes and communities through the establishment of placement preferences for the caregivers within the native communities of the child. The Indian Child Welfare Act played the role of a sample statute for international indigenous child welfare organizations.

Several events led to the establishment of native child welfare reforms. One of the factors promoting these reforms was the fact that federal boarding schools in the country destabilized native families. Boarding school programs were introduced by the federal government to assist in the assimilation of indigenous people in the non-native mainstream. Therefore, this had adverse effects on the indigenous families whereby they purposefully destabilized the indigenous communities. The boarding schools acted as effective deconstructive tools in the communities due to the fact that the communities were located very far away from their tribal communities hence children spent minimal time living at home.

In addition, federal boarding schools forcefully took indigenous children from their homes as early as the age of three and sent them to these boarding schools. After this forceful enrollment, the children were prevented from adopting their cultural practices and native customs. This is due to the reason that the native children and families were put under the threat of severe corporal punishment in the event that they engaged in cultural practices such as speaking in their native tongue. On the other hand, faith groups were responsible for administering the boarding schools. Hence, the religious administrators sought to displace the native children from their native religion.

Another factor promoting the development of native child welfare reforms was the fact that regional child welfare laws were racially and culturally prejudiced. One of the major factors contributing to the native child removal problem was the prejudiced application of the local child protective laws. One instance is the fact that the state child welfare laws used criteria such as neglect to remove indigenous children from their homes to foster care and adoptive institutions. Social workers also had a narrow understanding of proper child rearing practices and hence were largely biased towards Anglo-American ideals about their family structures. This resulted into the disproportionate removal of native children from their homes.

The development of native child reforms was also promoted by traditional racism that saw the removal of native children from their homes. Native families under normal circumstances raise their children under extended family systems. In the extended family, all of its members take part in raising the children within the family. This greatly contrasts to the nuclear family setting where the biological parents bear the responsibility of childcare. Therefore, in such cases, social workers considered the children in the native families neglected, as it was inconsistent with normal parenting in the nuclear family setting. This removal of children from their homes based on prejudice against extended family child rearing was considered racist against native family settings.

The racist application of local law promoted reforms in native child welfare that led to the development of the Indian Child Welfare Act. The Civil Rights Act managed to prohibit racial discrimination by government acts together with the Indian Child Welfare Act. Years that preceded the establishment of the Indian Child Welfare Act revealed that the racist government policies infected the native child welfare decisions. Consequently, very few children were placed in foster homes due to physical abuse. Physically abused children amounted to 1%. The other 99 % were in foster homes because of some ambiguous findings.

The political climate promoting child welfare reforms was influenced by the indigenous rights work. Civil rights reforms that were specific to the natives were gaining momentum in the United States. Hence, native communities and advocates demanded that the United States honor its trust responsibilities towards the native communities through addressing the laws and policies that infringed upon the native communities rights. This consequently resulted in the commitment to Indian policy, which saw the enactment of a new federal law that addressed native Indian issues. This later resulted in the establishment of the Indian Child Welfare Act in the United States.

The American Indian Religious Freedom Act promoted reforms in native child welfare. This act prohibited the government from interference with the rights of native people to their religious practices. This act promoted the liberation of the native people at a national level whereby their human rights were guaranteed under this act. The reforms under the American Indian Religious Freedom Act created the political climate necessary for effecting meaningful native child welfare reforms. The Indian civil rights movement also played a significant role in pressurizing the United States government, which translated in native child welfare reforms. Civil rights mounted political pressure on the United States government through their knowledge in the unequal number of Indian children stay away from their families. This forced the government to realize the undeniable and unjust role that stakeholders and the government has played in creating this state of affairs. This consequently motivated the congress to act.

The Indian Child Welfare Act provided substantive and procedural protection to native children during child custody proceedings. The Indian Child Welfare Act was applied during both involuntary and voluntary court proceedings. Involuntary court proceedings involved cases such as the forced termination of parental rights. Voluntary court proceedings were also included in the act whereby sections of the act demanded the tribe’s exclusive jurisdiction over any child custody proceedings that involved American-Indian children who were resided in reservations. The act also provided for the preference of a tribal jurisdiction for state courts that proceeded for fostering care placement or the termination of parental rights in cases where the native children did not reside in reservations.

The Indian Child Welfare Act addressed abuse and neglect cases in court hearings at the state level. The majority of the cases decided by the Michigan courts under this act involved child abuse and neglect proceedings. The Indian Child Welfare organization also handled other cases affecting native children. Guardianships and custodial arrangements with third parties facilitated by this act ensured proper foster care placement of the American-Indian children. The act also applied to step-parent adoptions of native children. This act was established to the extent that family law practitioners were required to familiarize with the act regardless of the nature of the child proceeding.

During case proceedings on child custody involving the Indian Child Welfare Act, interventions from the tribes are allowed. Therefore, as stated in the act, tribes reserve the right of intervention as indicated in sections of the Indian Child Welfare Act. The lack of intervention from the tribes does not have any influence over the court proceedings involving native child custody. The act stipulates that court proceeding regarding native child custody proceed with normalcy in the absence of intervention from the tribes.

The Indian Child Welfare Act is observed to exclude divorce from child custody proceedings. This occurs mostly when the placement of the child is with one of the parents. The exclusion of divorce from child custody proceedings was widely deliberated under the Bureau of Indian Affairs guidelines and non-binding guidelines that interpreted the act. According to the Bureau of Indian Affairs interpretation of the act, the Indian Child Welfare Act was not relevant during custody action between biological parents concerning the settlement of the child with a parent. The Indian Child Welfare Act would be applied only in such cases if a child were considered a third party.

The Indian Child Welfare Act acts in such a way that it protects only those tribes that are federally recognized within the United States. A federally recognized tribe is one that has an officially recognized government-to-government relationship with the federal government. The list of federally recognized tribes is found registered in the federal register under the Indian Entities Recognized Tribes whereby they are eligible to the services from the United States bureau of Indian affairs. Tribes that are not registered with the federal government are not protected under the Indian Child Welfare Act.

Because of the establishment of the Indian Child Welfare Act, American-Indian children receive protections in court custody proceedings as those who are non-American-Indian. In the event that a native child is detached from his or her family, the parents are fully protected under the act. The court proceedings because of the act opt for the placement of the American-Indian child with American-Indian relatives as opposed to placement with a non-American-Indian family.

The Indian Child Welfare Act had a significant impact on the enforcement and tribal benefits towards the American-Indian children. This is evident from the fact that legal disputes indicated the importance of carefully drafting statues such as the Indian Child Welfare Act resulted in the realization of positive results for the native communities and their families. The act also promoted strong government cooperation with the native communities as witnessed from the government staff working with the native communities. The act consequently contributed to the treatment of native communities and their relations as citizens of the U.S.A.

In conclusion, although the Indian Child Welfare Act is not a perfect solution to the child welfare of the native communities and native children within the United States, it is the only statute that addresses the needs of native children. However, in reference to the fact that it is the only national statute of its own right, in the United States, it has come as a relief to ensure that the rights of the native children are considered especially in cases of removal of children from their homes.

The act also illustrates that although the national standards are imperfect, they are beneficial to the indigenous children and their communities. The Indian Child Welfare Act also has unlimited sources of information. These sources include the Indian child welfare manuals, Bureau of Indian Affairs guidelines and the Indian Child Welfare Act handbook, which acts as a legal guide to the custody and adoption of native children. Therefore, the Indian Child Welfare Act provides information as a resource regarding indigenous communities. The act was established to safeguard the future of the American-Indian children, homes and tribes. Hence, the act brought about reforms that reduced the cases of unjustified exclusion of native children from their homes and tribes.

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