Balancing the Indian Child Welfare Act

April 17, 2017


Written by: Paul Mooney, 2L at Michigan State University of Law, Indigenous Law and Policy Program

In the fall semester of my second year in law school, I was working for a professor, who teaches about and runs a clinic that is focused on the Indian Child Welfare Act (ICWA). ICWA is a federal law that was passed in 1978 to combat the unprecedented level of Indian children being ripped away from their families. Surveys at the time showed that roughly twenty-five to thirty-five percent of Indian children were separated from their families and placed in foster care. Organizations were deliberately targeting Indian children because they believed the kids would be better off with non-Native families. This bias resulted in kids being stripped of their culture and families being torn apart. ICWA was created as safeguards for Indian children to stop these abuses.

My first project for my professor was helping state judges interpret the new ICWA regulations. The regulations add clarity to assist lawyers and judges to define terminology and interpret ICWA requirements. For example, ICWA requires parties to make “active efforts” to prevent the breakup of Indian families. However, ICWA does not define what “active efforts” means. Fortunately, the regulations provide a thorough definition of active efforts and examples of what active efforts look like. Additionally, the regulations provide mailing addresses of regional Bureau of Indian Affair offices, making it easier to provide notice to a tribe when one of its members is in state court. The new regulations provide state judges with guidance to assist with the application and interpretation of ICWA.

Many states have created additional solutions to the problems faced by Native families by passing their own state level ICWA laws. A state level ICWA can create clearer guidelines for state judges to follow, making up for any shortcomings in the federal law. Moreover, state court practitioners are likely more comfortable interpreting state law, meaning less confusion overall. Indian children benefit from a state law that considers their unique needs and living situations. States like Michigan, Nebraska, and Washington have passed state level ICWA laws, and when discussing best practices, all states without state ICWA laws may want to consider passing their own using these state laws as models.

Many non-Native national organizations like the National Council of Juvenile and Family Court Judges, the American Bar Association, and the National Center for State Courts have worked to create training materials and provide technical assistance for state court judges to understand and implement ICWA. They are also trying to create stronger collaborative practices between state and tribal courts. Stronger collaborations that focus on following federal law and not repeating the mistakes of the past will only benefit all parties, particularly the children and families, involved in these cases.

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