1. Indian Child Welfare Act Is it Constitutional? Questions from a confused layman

2. Background - 1700’s federal government formed – took Indian relations away from colonies/states – treaties and Indian policy became exclusively federal. Constitution: Article I, § 8, cl. 3 Indian Commerce Clause. Article II, § 2, cl. 2 Treaty clause. Seen as justification and authority to single out tribal Indians living on or near reservations for special treatment.

3. Background - 1800’s Assimilation period 1830 Indian Removal Act - reduction of land base 1887 Dawes Act - reduced land base for citizenship Citizenship and assimilation accelerated by boarding school education - removal of children from the Indian family

4. Background - 1800’s continued Boarding school education had broad support at the time. Assimilation required suppression of Indian culture Considered compassionate program. Operated to 1930’s until the passage of the IRA.

5. Background – 1900s 1934 - Assimilation policy abandoned. IRA passed - preserve Indian culture, limited self- government and economic development. 1954 to 1966 - termination and relocation period. Tribal Indians relocate to off reservation urban areas. 50 to 60% of Indians live outside reservations. Tribes began to see population out-flows and more intermarriage with non-Indians. Tribes fear loosing cultural cohesiveness.

6. Background – 1900’s continued 1970s – American Indian Policy Review Commission identified tribal concerns over the removal of Indian children by non-Indian child welfare practices. Tribes complained removals were generally unwarranted, culturally incentive and inappropriate and racially discriminatory,

7. Indian Child Welfare Act of 1978 Codified as Title 25 Chapter 21 § 1901-1963 Intended purpose: 1. End Indian child custody removals that are unwarranted, 2. “to protect the Indian child as a resource for Indian communities..” 3. Protect the integrity of the Native American family 4. Protect the unity of Indian Nations 5. Preservation of the Native American heritage 6. End Americanized, culturally insensitive child care standards 7. Reject non-Indian values like “rugged individualism” in favor of community based family structures

8. ICWA objectives Grant tribal courts jurisdiction over Indian child custody proceedings BIA formulates guidelines for procedures Defines class status

9. ICWA definitions Indian child = unmarried person under age 18 who is a member of a tribe or eligible for membership and the biological child of a tribal member. (Sec. 1903(4)) Child custody proceedings = voluntary and involuntary termination of parental rights, adoption placement, status decisions, and divorce custody proceedings

10. ICWA requirements Tribes determine their membership requirements – burden on tribes to invoke ICWA and provide sufficient evidence that a child custody proceeding exists and that proceeding involves an “Indian child” Court defers proceedings to tribal courts. Federal Indian policy determined that tribal courts better situated and appropriate to determine the best interests of Indian children. Jurisdiction: on res. = exclusive / Off res. = concurrent

11. ICWA requirements Tribal courts can decline transfers State courts can retain jurisdiction for off reservation domiciled Indian children under some circumstances State courts burdened with myriad of notification requirements to tribes State agencies required to show “active” efforts to keep Indian families intact prior to outside placement of an Indian child

12. ICWA requirements ICWA requires state courts to employ expert witness before placement or termination of parental rights State courts required to follow ICWA adoptive placement preferences: 1. Indian child’s extended family 2. Indian child’s tribal members 3. Other Indian families

13. ICWA requirements State court placement preferences for foster care or preadoptive placement: 1. Indian child’s extended family 2. Indian run foster home licensed or approved by Indian child’s tribe 3. Non-Indian foster home approved by the tribe 4. Institution for children approved by the tribe or operated by an Indian organization

14. ICWA complaints Failure to comply with requirements can vacate a proceeding (adoption, placement, custody, malpractice suits) Burden on state social services to comply Burden on non-tribal courts to enforce compliance Racial classification or political association? Provisions of the 14 th Amendment for equal protection under the law – a Constitutional breech?

15. Is the ICWA is unconstitutional? Does this special legal status and treatment of Indian children violate the 14 th Amendment which requires equal protection of the law? Does the ICWA violate the requirements of prohibitions against racial discrimination?

16. The “special treatment” begins Federal common law created the “Trust Doctrine” and “guardian-ward” doctrine. (Cherokee Cases) Congress empowered Indian Office to create Indian preference employment under 1934 IRA.

17. The Supreme Court said “No”! Morton v Mancari 1974, decided the IRA’s Indian preference for tribal members is a “political” - not an impermissible racial classification. The Court affirmed power of Congress to legislate Indian policy through the Commerce Clause and the Treaty Clause of the Constitution.

18. The USSC says No! Civil Rights Act of 1964 prohibits discrimination by race, color, religion, sex, or national origin. Special treatment of Indians allowed when policy is “rationally” tied to fulfillment of the Indian trust obligation. Could the ICWA present an opportunity challenge to Morton v Mancari?

19. Questions Does ICWA require a race classification that can’t be deemed political? ICWA defines “Indian Child” - unmarried under 18 years of age – racial? - member of an Indian tribe – perhaps? - eligible for membership in a tribe - ? - biological child of a tribal member - ?

20. Questions Eligible or Enrollable category? - what constitutes the most widely used criteria for tribal membership? -blood quantum or ancestry! Biological child category? - blood quantum or ancestry!

21. My Questions Do group rights supersede individual rights? Can a US citizen be saddled with legal obligations to a government body starting in the womb? Should federal government trust obligations to Indians tribes trump parental rights? Can children be classified as a community resource? Whose interests are protected – community or child? Is finding a child enrollable or eligible for ICWA “child custody proceedings” racial discrimination?

22. My Questions Is racial and legal quality served when we: define Indian children as a community resource? remain legally obligated to preserve Indian Nations? are legally liable to protect a group’s culture? say individual rights are inappropriate for some? codify policies in conflict with core Constitutional principals like personal sovereignty and individual rights rather than group or community based rights?

23. End Thanks for your attention