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79-409: The Indian Child Welfare Act of 1978 ( ICWA , enacted November 8, 1978 and codified at 25 U.S.C.   §§ 1901 – 1963 ) is a United States federal law that governs jurisdiction over the removal of American Indian children from their families in custody, foster care and adoption cases. It gives tribal governments exclusive jurisdiction over children who reside on, or are domiciled on

158-418: A reservation . It gives concurrent, but presumptive jurisdiction over foster care placement proceedings for Native American children who do not live on the reservation. ICWA gives tribal governments a strong voice concerning child custody proceedings that involve Native children, by allocating tribes exclusive jurisdiction over the case when the child resides on, or is domiciled on, the reservation, or when

237-740: A Native tribe has exclusive jurisdiction over a Native child who resides or is domiciled within the tribe's land. This includes both reservation land, other tribal lands that are held in trust by the Federal government for the benefit of a tribe or individual, or held by a tribe or individual subject to a restriction by the United States against alienation. The last two describe tribal lands such as those in Oklahoma that were transferred to individual Natives under various laws. The Native tribal courts also have exclusive jurisdiction over Native children who are wards of

316-414: A case involving foster care placement or the termination of parental rights. The intervention may be at any time, and not just at the beginning of the proceedings. This right does not apply to pre-adoption or adoption proceedings unless it also includes the termination of parental rights. In a foster care or termination of parental rights case where the tribe and the state exercise concurrent jurisdiction,

395-435: A child benefit from close contact with both parents. It has been argued that the current standard should be replaced with a best interests of the child from the perspective of the child approach that takes child-focused epidemiological and psychological research into account regarding children's physical, mental and social well-being after divorce or separation. The best interests standard is often better suited to identifying

474-399: A child is born outside of marriage, when grandparents assert rights with respect to their grandchildren, and when biological parents assert rights with respect to a child who was given up for adoption. It is the doctrine usually employed in cases regarding the potential emancipation of minors . Courts will use this doctrine when called upon to determine who should make medical decisions for

553-468: A child where the parents disagree with healthcare providers or other authorities. In determining the best interests of the child or children in the context of a separation of the parents, the court may order various investigations to be undertaken by social workers , Family Court Advisors from CAFCASS , psychologists and other forensic experts , to determine the living conditions of the child and his custodial and non-custodial parents. Such issues as

632-518: A desirable way to ensure the child was cared for by family. During congressional consideration, held at the request of Native American advocacy groups, opposition was raised by several states, the LDS Church, and several social welfare groups. The bill was pushed through by Representative Morris Udall of Arizona , who lobbied President Jimmy Carter to sign the bill. It was strongly supported by Senator James Abourezk of South Dakota, who had authored

711-516: A foster home or institution or the home of a guardian or conservator where the parent or Indian custodian cannot have the child returned upon demand, but where parental rights have not been terminated". The US Supreme Court issued a decision pertaining to the ICWA in the case Adoptive Couple v. Baby Girl , on June 25, 2013. In a 5-4 opinion delivered by Justice Samuel Alito , the Supreme Court held that

790-426: A lack of funding for programs that would support the child and the parents at the tribal level but that are present at the state level. Note that a tribal court may not be a traditional tribunal, but may be any other administrative body empowered by the tribe to act on child custody matters. ICWA requires that active efforts be made with the existing family to rehabilitate the root cause of problems prior to removal of

869-466: A primary consideration in the determination of welfare measures in response to the child's needs. The Act defines the key elements that need to be taken into consideration for a best interests determination: This provision offers legally binding guidance to professionals on how the concept of the best interests of the child should be understood. It raises awareness of the complexity of the issues under consideration and makes reference to important rights of

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948-508: A transfer based on that law's time standards. After a motion for transfer has been made, there is a presumption that the tribal court will receive the case. The state court is required to make the transfer unless one of three factors is present: A biological parent, whether Indian or non-Indian, may object to and veto a proposed transfer of a case to tribal court. A prospective parent, the Indian child, or another party may object, but may not veto

1027-432: A transfer, and those objections would be covered under the "good cause" provision. In the event that a parent vetoes the transfer, the case will remain in state court. This is most commonly seen when one of the parents is non-Indian. The tribal court may decline to accept the transfer of a case from a state court. An example is when the parents move to transfer the case, but the tribe declines to accept jurisdiction due to

1106-460: A tribal court and, thus, defeated the transfer. This case was the basis for development of a body of jurisprudence around the "existing Indian family" exception to ICWA. In the years following the Kansas Baby Boy L. case, approximately half of the states adopted or expanded upon this "existing Indian family" exception, although such language was not part of the text of the ICWA. Subsequent to

1185-702: A tribal newsletter." In her 1997 testimony before the Joint Hearing of the House Resources Committee and the Senate Committee on Indian Affairs , Assistant Secretary of the Interior Ada Deer ( Menominee Indian Tribe of Wisconsin ) stated: ... we want to express our grave concern that the objectives of the ICWA continue to be frustrated by State court created judicial exceptions to the ICWA. We are concerned that State court judges who have created

1264-414: Is "any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe." ICWA applies to a "child custody proceeding" involving a Native child. The term "child custody proceeding" involves: (i) "foster care placements", where the child has been placed in a foster home, and

1343-415: Is an Indian child. (IV) The residence or domicile of the child, his or her biological parents, or the Indian custodian is known by the court to be or is shown to be a predominantly Indian community. (V) An officer of the court involved in the proceeding has knowledge that the child may be an Indian child.' The MOWA Band of Choctaw Indians, a tribe that is federally recognized by the U.S. Federal Government but

1422-505: Is because "a parent's current enrollment is not always dispositive of a child's membership in an Indian tribe". The finding in the case of the children involved was "In the matter of C.H. et al., 510 N.W.2d (S.D. 1993) that the MOWA Band of Choctaw Indians were held to be a Federally Recognized tribe for the purposes of ICWA. The child may be provided an attorney, and the parents are entitled to one if they are indigent and cannot afford one. If

1501-574: Is likely to prejudice the interests of any child, it requires the court to consider the "welfare checklist", i.e. the court must consider: The welfare checklist considers the needs, wishes and feelings of the child and young person and this analysis is vital to ensure that the human rights of children are always in the forefront of all consideration. The welfare checklist provides a comprehensive list of issues that need to be considered to ensure that young people who come into court proceedings are safeguarded fully and their rights as citizens are promoted. To

1580-451: Is not recognized for services of the Bureau of Indian Affairs under 25 C.F.R 83 et al., is used for precedent for many cases whereby the following conditions apply: In cases whereby the mother may not be a member of the tribe, however she is eligible, then before the provisions of ICWA apply, "the trial court must initially determine if a child is an Indian child within the meaning of ICWA." This

1659-556: The Bureau of Indian Affairs (BIA) paid the states to remove Native children and to place them with non-Native families and religious groups. Testimony in the House Committee for Interior and Insular Affairs showed that, in some cases, the per capita rate of Native children in foster care was nearly 16 times higher than the rate for non-Natives. The tribes said that such removal demonstrated lack of understanding by child welfare workers of

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1738-469: The Kansas Supreme Court held that the ICWA " was not to dictate that an illegitimate infant who has never been a member of an Indian home or culture, and probably never would be, should be removed from its primary cultural heritage and placed in an Indian environment over the express objections of its non-Indian mother." Under the facts of the case, the court stated that the ICWA did not apply unless

1817-595: The UN Convention on the Rights of the Child , assessing the best interests of a child means to evaluate and balance "all the elements necessary to make a decision in a specific situation for a specific individual child or group of children". Due to the diversity of factors to consider, usually more than one profession or institution is involved in the assessment process, bringing together various perspectives and areas of expertise from

1896-589: The United States Court of Appeals for the Fifth Circuit ordered that O'Connor's judgment be stayed, holding that it violated tribal sovereignty . On August 9, 2019, the court ruled that the law does not violate equal protection . On November 7, 2019, the court voted to rehear the case en banc . The ICWA remained in effect. In 2022 the case was heard by the Supreme Court , who upheld the constitutionality of

1975-414: The harm principle , which requires outside intervention to prevent serious harm. For example, one custody situation might be considered optimally in the best interests of the child, but a slightly different arrangement might fall into the zone of parental discretion. However, a situation that would put the child into serious danger would violate the harm principle and therefore be rejected. Reference to

2054-422: The "existing Indian family exception" are delving into the sensitive and complicated areas of Indian cultural values, customs and practices which under existing law have been left exclusively to the judgment of Indian tribes ... We oppose any legislative recognition of the concept. "Foster care placement" is defined as "any action removing an Indian child from its parent or Indian custodian for temporary placement in

2133-556: The 1970s, approximately 5,000 Native children were living in Mormon homes. The lack of knowledge about Native American culture by most social workers also contributed to the high removal rates. Most social workers are conditioned by the " best interest of the child ", as outlined by Beyond the Best Interests of the Child (Second Edition), which advocates bonding with at least one adult as a parent figure. This did not take into consideration

2212-579: The Kansas Baby Boy L. case, in 1989, the United States Supreme Court heard Mississippi Band of Choctaw Indians v. Holyfield . 490 U.S. 30 (1989) As in the Baby Boy L. case, both parents in Holyfield consented to the voluntary termination of their parental rights and adoption of their twin infants by a non-Indian family. The unmarried parents were each Choctaw who were enrolled in

2291-479: The best interests doctrine represented a 20th-century shift in public policy . The best interests doctrine is an aspect of parens patriae , and in the United States it has replaced the tender years doctrine , which rested on the basis that children are not resilient, and almost any change in a child's living situation would be detrimental to their well-being. Until the early 1900s, fathers were given custody of

2370-400: The best interests of the child has been introduced into relevant EU laws and policies, including in the context of migration, asylum, trafficking and potential return. The wording attached to the best interests principle ranges between the imperative must and shall to the less prescriptive should . The Finnish Child Welfare Act provides that the best interests of the child needs to be

2449-412: The best of several acceptable alternatives and has less value in determining which alternatives should be deemed acceptable. Alternative models include deferring to parents or guardians when the decision falls into the zone of parental discretion (parents or guardians make choices that others consider suboptimal, but which seem better to the decision-makers and have little potential for serious harm) and

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2528-544: The bill and previously contributed to founding the American Indian Policy Review Commission and the Select Committee on Indian Affairs , each of which he chaired. Congress's overriding purpose in passing the ICWA was to protect Native culture and tribal integrity from the unnecessary removal of Native children by state and federal agencies. Awareness of the issues facing Native American children

2607-672: The case to the South Carolina State Supreme Court, which had ruled that the father should be given custody under ICWA. Title 25 of the United States Code Title 25 of the United States Code outlines the role of Indians in the United States Code . This United States federal legislation article is a stub . You can help Misplaced Pages by expanding it . Best interests According to

2686-418: The child and her or his future. The central perspective is that of the girl or boy concerned. A trust-based relationship and communicating effectively in the child's main language enables the child to exercise his or her right to be heard . Comprehensive assessments involve a multi-disciplinary team of qualified professionals. A comprehensive best interests assessment and determination process addresses all of

2765-515: The child has done something that would be considered a crime if done by an adult. Because Native tribes play a major part in the upbringing of Native children, which is significantly different than that of the parents, the ICWA gives important jurisdictional powers to Native tribes in order to preserve the Native culture and tribal future. Tribal courts hold either exclusive jurisdiction or concurrent jurisdiction dependent on several factors. Under ICWA,

2844-640: The child is a ward of the tribe; and concurrent , but presumptive, jurisdiction over non-reservation Native Americans' foster care placement proceedings. ICWA was enacted in 1978 because of the disproportionately high rate of forced removal of Native children from their traditional homes and essentially from Native American cultures as a whole. Before enactment, as many as 35 percent of all Native children were being removed, usually forcibly, mostly from intact Native American families with extended family networks, and placed in predominantly non-Native homes, which had no relation to Native American cultures. In some cases,

2923-484: The child such as the right to education and development, safety and well-being, respect for the child's views and the child's cultural and other backgrounds. Since the US has not yet ratified the UN Convention on the Rights of the Child , which is the central instrument defining and providing the right of the best interests of the child for much of the world, a different set of laws, precedents, and applications apply. The use of

3002-453: The child was part of an "existing Indian family unit", but this language was not part of the act. The court denied the Kiowa Tribe of Oklahoma the right to intervene in the case, stating that the ICWA did not apply. The court also held that even if the ICWA did apply, the trial court committed no reversible error because the non-Indian mother would have objected to the transfer of the case to

3081-550: The child's cultural roots. A state court may decline to transfer a case for "good cause", but that term is not defined in the ICWA. The BIA has issued an advisory set of guidelines for state courts to use in determining "good cause". While these guidelines are not mandatory, many states have adopted them, and they include: The BIA has also set out factors that state courts may not consider when determining whether good cause exists. These are binding regulations, effective as of December 12, 2016. The prohibited factors are: In 1982,

3160-558: The child's interests have high priority and are not just one of several considerations. A larger weight is attached to what serves the child best: The definition of the best interests of the child is not straightforward in either legal practice or when formulating laws and conventions. Its implementation has received considerable criticism by some child psychologists, epidemiologists and the family law reform movement, particularly with regard to how it often marginalizes children from one of their parents after divorce or separation, even though

3239-554: The child's tribe at least 10 days prior to the proceeding. Emergency proceedings may follow state law, but proceedings after that are controlled by ICWA. If the state cannot determine who the parent or the tribe is, then the state is required to notify the Secretary of the Interior . Notification must contain all the requisite information identified in 25 CFR § 23.111 and be sent by registered or certified mail with return receipt requested, and

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3318-420: The child. Many tribes are focusing on intercession prior to crisis. By engaging at-risk families, and providing services, they may be able to heal the family, with a dramatic improvement in outcome for both the child and the family. The tribes focus on remediation and rehabilitative services to protect the family, and offer unique services geared to tribal values, to help parents understand their roles as parents in

3397-400: The child. One of the factors in this judgment was a recognition that, because of the differences in culture, what was in the best interest of a non-Native child was not necessarily what was in the best interest of a Native child. The latter traditionally have larger extended families and tribal relationships in their culture. As Louis La Rose ( Winnebago Tribe of Nebraska ) testified: I think

3476-416: The child. The objective of the best interests determination process is the identification of a durable solution. Best interests determinations are carried out when the issues at stake are expected to have significant implications on the child's present and future life. Best interests assessments aim to gather all the facts needed to arrive at a conclusion about the impact of any action, measure or decision on

3555-462: The children in case of divorce. Many U.S. states then shifted from this standard to one that completely favored the mother as the primary caregiver. In the 1970s, the tender years doctrine was replaced by the best interests of the child as determined by family courts. Because many family courts continued to give great weight to the traditional role of the mother as the primary caregiver, application of this standard in custody historically tended to favor

3634-622: The country of origin and destination and, in particular, the perspective of the child. The following aspects are relevant for the best interests of the child: Best interests' assessments can be conducted informally and ad hoc or as formalised processes. Assessments look at everyday matters and decisions with more or less severe implications for the child. The best interests of a child may change significantly over time as children grow and their situations and capacities evolve, so their best interests may need to be reassessed periodically. Best interests determinations are formal processes conducted with

3713-402: The court or tribe, regardless of their location. The first Supreme Court case dealing with ICWA was the 1989 case Mississippi Band of Choctaw Indians v. Holyfield (490 U.S. 30, 109 S.Ct. 1597) . This Court ruled that the ICWA gives the tribal court exclusive jurisdiction over a case in which the parent was domiciled on the reservation, no matter what the parent's personal desires are in

3792-412: The courts within those jurisdictions to consider specific factors. The term is used as doctrine used by courts to determine a wide range of issues relating to the well-being of children . In the application of family law, one of the most common of these issues concern questions that arise upon the divorce or separation of the children's parents. Examples include: In proceedings involving divorce or

3871-438: The cruelest trick that the white man has ever done to Indian children is to take them into adoption court, erase all of their records and send them off to some nebulous family ... residing in a white community and he goes back to the reservation and he has absolutely no idea who his relatives are, and they effectively make him a non-person and I think ... they destroy him. Congress recognized that four primary factors contributed to

3950-657: The culture. Early intervention and support helps caregivers and families achieve better outcomes by addressing parenting skills, addictions, domestic violence, and housing instability. Results in a study of intervention/support indicated 81% of cases preserved the existing family, or placed the child with extended family within the tribe. By working with ICWA and the tribes to create preventative services that are culturally sensitive , states can dramatically change outcomes of families who come to their attention. Such services need not be limited to tribal members, but are also available to foster and adoptive families to help them connect with

4029-422: The custody case. Concurrent jurisdiction is shared jurisdiction between the tribal courts and the state courts. State courts have been severely criticized for ignoring the requirements of the law. In all cases that the tribal court does not have exclusive jurisdiction, they have concurrent jurisdiction. These cases would include custody proceedings involving Native children who do not reside or are not domiciled on

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4108-450: The dependent child may be affiliated forecloses the participation by the tribe, [ICWA] notice requirements are strictly construed." ' ." "The determination of a child's Indian status is up to the tribe; therefore, the juvenile court needs only a suggestion of Indian ancestry to trigger the notice requirement." The circumstances under which a juvenile court has reason to believe that a child is an Indian child include, but are not limited to,

4187-476: The dissolution of a common-law marriage or a civil union , family courts are directed to assess the best interests of any children of these unions. However, this doctrine is not used to settle custody matters involving urban and minority residents in cities such as Philadelphia, Pennsylvania, for example, where the tender years doctrine is still in effect. The determination is also used in proceedings which determine legal obligations and entitlements, such as when

4266-498: The exception. Other sources have noted that the Holyfield case is relied upon as support for both sides of the debate over the "existing Indian family" exception: Surprisingly, Holyfield has been relied upon by courts and parties both to support and reject the existing Indian family exception, which has been invoked in proceedings involving Indian children and families who are living off the reservation and who are, therefore, subject to state court jurisdiction concurrent with that of

4345-505: The existing Indian family exception requires the state court to determine what it means to be an Indian child or an Indian family, by applying tests to determine the "Indian-ness" of the child. One such test involved evaluating if the child lived "in an 'actual Indian dwelling,' apparently thinking of a teepee, hogan, or pueblo." Another work notes that "state courts have taken it upon themselves to determine individuals' relationship with their tribes by examining such contacts as subscription to

4424-410: The following: Procedural safeguards and documentation in best interests determinations include: The different elements considered in an assessment and determination of the best interests of a child may appear to be competing or in contradiction. Potential conflicts are solved on a case-by-case basis. The right of the child to have her or his best interests taken as a primary consideration means that

4503-428: The following: '(I) Any party to the case, Indian tribe, Indian organization or public or private agency informs the court that the child is an Indian child. (II) Any public or state-licensed agency involved in child protection services or family support has discovered information which suggests that the child is an Indian child. (III) The child who is the subject of the proceeding gives the court reason to believe he or she

4582-465: The foregoing, we hereby overrule Baby Boy L. (citation omitted), and abandon its existing Indian family doctrine. Indian heritage and the treatment of it has a unique history in United States law. A.J.S. has both Indian and non-Indian heritage, and courts are right to resist essentializing any ethnic or racial group. However, ICWA's overall design, including its "good cause" threshold in 25 U.S.C. 1915, ensures that all interests—those of both natural parents,

4661-549: The heightened standard of deferring to tribal jurisdiction, required under § 1912(f) of ICWA does not apply when the parent in question never had physical or legal custody of the child. The Court ruled that Dusten Brown, a Cherokee man, "could not rely upon the language of a federal statute, the Indian Child Welfare Act, to protect himself against the termination of his parental rights over his daughter, Veronica, after another couple sought to adopt her." The Court remanded

4740-690: The high rates of Native child removal by states. These were 1) "a lack of culturally competent State child-welfare standards for assessing the fitness of Indian families; 2) systematic due-process violations against both Indian children and their parents during child-custody procedures; 3) economic incentives favoring removal of Indian children from their families and communities; and 4) social conditions in Indian country". Various other groups have also had stakes in these decisions. The Church of Jesus Christ of Latter-day Saints (LDS Church) had an Indian Placement Program that removed Native children from their tribes and placed them into church members' homes. By

4819-466: The involvement of public authorities and professional decision makers. The objective of the best interests determination is to reach a decision based on national law that safeguards the rights of the child and promotes her or his well-being, safety and development. Decision-makers weigh and balance all the relevant factors of the case, giving due consideration to all the rights of the child and the obligations of public authorities and service providers towards

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4898-543: The law in June 2023 (see Haaland v. Brackeen ). ICWA sets minimum Federal standards for nearly all Native child custody proceedings, including adoption, voluntary and involuntary termination of parental rights, and removal and foster care placement of Native children, but excluding divorce and child delinquency proceedings. ICWA provides that state courts have no jurisdiction over the adoption or custody of Native children residing within their own tribal reservation. An "Indian child"

4977-411: The least restrictive (most family like) setting available and in close proximity to the parents' home, consistent with the best interest and special needs of the child." Although the statute does not define the "best interest of the child", best interest is referenced in two other sections. Moreover, several states have chosen to statutorily define or reference the "best interest of the child", and require

5056-427: The manner they see fit. Troxel v Granville, 530 US 57; 120 S Ct 2054; 147 LEd2d 49 (2000) . The "best interest of the child" doctrine is largely seen in child welfare laws and the paramount consideration of the court when making decisions with regards to abused and neglected children . The Adoption Assistance and Child Welfare Act of 1980 requires that, "…each child has a case plan designed to achieve placement in

5135-417: The mother of the children. The "best interests of the child" doctrine is sometimes used in cases where non-parents, such as grandparents, ask a court to order non-parent visitation with a child. Some parents, usually those who are not awarded custody, say that using the "best interests of the child" doctrine in non-parent visitation cases fails to protect a fit parent's fundamental right to raise their child in

5214-444: The parent cannot have the child returned upon demand, but where parental rights have not been terminated; (2) terminations of parental rights; (3) "preadoptive placements", which means placing the child in a foster home after the termination of parental rights, but before or instead of an adoption; and (4) adoptions. ICWA does not cover child custody hearings during divorce proceedings. Nor does ICWA cover cases of child delinquency when

5293-403: The parties notified have the right to an additional 20 days to prepare prior to the proceeding. Failure to provide such notice can cause a jurisdictional defect that may result in any such proceeding to be overturned. The ICWA case may be dismissed for lack of due process if not for the lack of jurisdiction "because ' "failure to give proper notice of a dependency proceeding to a tribe with which

5372-440: The removal of the child from the Indian family. The "active effort" requirement also applies even if the party seeking removal is a private party, as in a private party adoption. The child may not be temporarily removed unless there is a likelihood of "serious emotional or physical damage" to the child if they remain in the home. The tribe and parents or Indian custodian of the Indian child have an unqualified right to intervene in

5451-403: The role of extended families in tribal culture, and threatened tribal survival by removing children at such a high rate. The process also damaged the emotional lives of many children, who lost touch with their people and culture, as adults testified who had been through the process. Congress recognized this, and stated that the interests of tribal stability were as important as the best interests of

5530-404: The stability of the child's life, links with the community, and stability of the home environment provided by each parent may be considered by a court in deciding the child's residency in custody and visitation proceedings. In English law , section 1(1) Children Act 1989 makes the interests of any child the paramount concern of the court in all proceedings and, having indicated in s1(2) that delay

5609-531: The state does not have provisions for providing indigent parents an attorney, the Secretary of the Interior is to pay the attorney expenses. All of the parties have the right to examine all documents and reports related to the proceeding. In a removal case, the party seeking the removal (normally Child Protective Services or similar agency) is required to make active efforts to provide the parent or custodian with remedial and rehabilitative services designed to prevent

5688-518: The tribal court. As of 2010, Alabama , Indiana , Kentucky , Louisiana , Missouri , and Tennessee still use the "existing Indian family" exception. Alabama and Indiana have limited its application by further court decisions. Nineteen states have rejected the doctrine, either by court decision or statute. The Kansas Supreme Court expressly overturned the Baby L. decision in In re A.J.S. , stating: Given all of

5767-421: The tribal culture of the extended tribal family, in which children could have close relationships with members of the extended family. The common Native American practices of having a child cared for by an extended relative was viewed as abandonment by allegedly well-intentioned, but arguably paternalistic, state social workers. But tribal members considered care by an extended family member to be normal behavior and

5846-414: The tribal lands (such as someone born off the reservation and whose parents do not live on the reservation). In these concurrent decisions, the ICWA expresses a preference for tribal jurisdiction in Native child custody proceedings. In an involuntary proceeding, the party seeking the placement of the child, which is often but not always the state, must notify both the parent(s) and/or Indian custodian(s) and

5925-485: The tribe, either biological parent, or the Indian custodian may move to transfer the case from the state court to the tribal court. The ICWA technically allows transfer to the tribal court at any time in the proceeding, but state courts vary on how they view transfer requests after state court proceedings are well into the adjudication process. In some cases the state will look to the Adoption and Safe Families Act to deny such

6004-700: The tribe, the child, and the prospective adoptive parents—are appropriately considered and safeguarded. ICWA applies to this state court child custody proceeding involving A.J.S., and the Cherokee Nation must be permitted to intervene. In June 2016, the Department of Interior specifically rejected the "existing Indian family" exception. The regulations reflect that courts that rejected the doctrine were correct to do so, and that "Congress did not intend to limit ICWA's applicability to those Tribal citizens actively involved in Indian culture." Some critics have complained that

6083-414: The tribe. Unlike the parents in Baby Boy L. , the mother in this case lived on the reservation both before and after the birth of the children off-reservation. The Supreme Court found that the children were classified as "domiciled" on the reservation because their biological mother was domiciled there. It ruled that the exclusive jurisdiction of the tribal court under ICWA should have been invoked. The case

6162-496: Was raised by the advocacy and research by the Association on American Indian Affairs . Congress reasoned that "there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children." In October 2018, in the case Brackeen v. Zinke , Federal District Court Judge Reed O'Connor struck down parts of the law as unconstitutional, claiming that it mandated racial preference. In December 2018,

6241-493: Was remanded to the tribal court for a custody determination three years after the twins had been placed with non-Indian adoptive parents. Noting the potential disruption in the twins' lives, the Supreme Court said that any potential harm could have been avoided if the parents and state court had not wrongfully denied the tribe its rights under ICWA. While the Supreme Court did not consider the "existing Indian family" exception, some sources cite Holyfield as an implicit rejection of

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