Standing Strong for Native Families
A website from the Native American Rights Fund
Legal analysis or commentary on the Indian Child Welfare Act and related regulations.
A report released Monday by a northern California civil grand jury finds that the local child welfare system routinely misses court deadlines, creating “an unnecessary amount of stress” for children and families — particularly members of tribal communities who are overrepresented in the foster care system. Read the full article at The Imprint.
The department’s investigation found that Alaska’s system of care is heavily reliant on institutions and that key community-based services and supports needed to serve children with behavioral health disabilities in family homes, such as home-based family treatment, crisis services and therapeutic treatment home services, are often unavailable. As a result, many children with behavioral health … Read more
Indigenous affairs reporter Miles Brady talked with Koston Lathoris, a Las Vegas lawyer and citizen of the Southern Paiute tribe, about the case. Listen to the full story at Nevada Public Radio.
Each side presented their oral arguments Wednesday to the U.S. Supreme Court for the most serious challenge to the Indian Child Welfare Act in recent memory. The decision in Haaland v. Brackeen will be a major force in the future of ICWA and the scope of tribal sovereignty. Today on Native America Calling, Shawn Spruce … Read more
The Supreme Court appeared likely Wednesday to leave in place most of a federal law that gives preference to Native American families in foster care and adoption proceedings of Native children. Read the full article at Indian Country Today.
And because Native children represent about 55% of all children in state custody, Chen says overturning ICWA would have huge implications for Alaska. At the same time, Native people only make up a little over 20% of the population, so there’s a disparity, she says, and a feeling that the state hasn’t done enough to … Read more
The law, known as ICWA, includes many other provisions that impact Native families across Indian Country. What ICWA will look like following the Supreme Court’s decision depends on how the justices rule. Amicus curiae briefs filed in the case cover arguments made for and against the law. Read the full article at Native News Online.
The U.S. Supreme Court’s conservative majority seemed conflicted Wednesday, as the justices heard arguments challenging the Indian Child Welfare Act, known by the acronym “ICWA.” Listen to the full story at NPR.
The Indian Child Welfare Act set out to fix generations of harm to Native kids. The Supreme Court could soon toss it aside. Read the full article at the Mother Jones website.
The U.S. Supreme Court hears arguments Wednesday in a case that pits several prospective adoptive parents and the state of Texas against the Indian Child Welfare Act — a federal law aimed at preventing Native American children from being separated from their extended families and their tribes. Listen to the full story at the NPR … Read more
On Wednesday, the Supreme Court will hear arguments in Brackeen v. Haaland, a case engineered to hobble the federal government’s power to protect Native communities from exploitation. The plaintiffs are asking the justices to invalidate the 44-year-old Indian Child Welfare Act, which prioritizes the placement of Native children in custody proceedings with Native families. But they’re … Read more
The case has enormous implications for Indian Country, its children and the ongoing existence of tribal sovereignty, said Sarah Deer, professor at the University of Kansas and chief justice for the Prairie Island Indian Community. Read the full article at the Indian Country Today website.
The Imprint walks readers through highlights of the Brackeen v. Haaland case Read the full article at The Imprint.
Matthew Fletcher, Harry Burns Hutchins Collegiate Professor of Law, University of Michigan, and Rebecca Nagle, Creator and Host, “This Land” Podcast, discuss the case before the Supreme Court. Listen at the Ideastream Public Media website.
Kendra Lowden is a Citizen Potawatomi Nation member and Curly family descendant. She works as the Senior Program Associate at the University of Denver’s Graduate School of Social Work. She is the owner of Ghost Thunder Child Welfare Consulting and previously served as the Board President of the Oklahoma Indian Child Welfare Association. Kendra discussed … Read more
On Nov. 9, the eyes of Indian Country will once again turn toward the nation’s capital, where the Supreme Court will hear a challenge to the Indian Child Welfare Act (ICWA), a law passed in 1978 that enshrines tribal governments’ right to oversee foster care placements in cases involving Native children. Read the full article at … Read more
The data from the Pascua Yaqui Tribe and Pima County ICWA Courts show the success of ICWA and support the nickname ICWA has earned as the “gold standard.” There are golden nuggets of evidence found in Arizona, and it is imperative that the Supreme Court of the United States uphold ICWA as constitutional for the … Read more
This Article describes how the statutory structure of child welfare laws enables lawyers and courts to exploit deep-seated stereotypes about American Indian people rooted in systemic racism to undermine the enforcement of the rights of Indian families and tribes. Even when Indian custodians and tribes are able to protect their rights in court, their adversaries … Read more
ALIGNING GOVERNANCE WITH CULTURE AND CREATING COMMUNITY SUPPORTS THAT FOSTER FAMILY WELLBEING BY PATRICE KUNESH Read the full article at National Native Children’s Trauma Center.
Read the full article in The Desert Sun.
For the last 44 years, a federal law called the Indian Child Welfare Act (ICWA) has sought to prevent these situations by prioritizing that Native children adoptees be placed, when possible, with Native relatives or other members within the child’s tribe. But after months of consequential rulings by the U.S. Supreme Court’s right-wing majority, four … Read more
In ‘Brackeen v. Bernhardt’, decided on Aug. 9, 2019, the U.S. Court of Appeals for the Fifth Circuit held that the Indian Child Welfare Act was constitutional. We applaud the Fifth Circuit for upholding this federal law that is vital to safeguarding the welfare of Indian children. Read the full article at the New York … Read more
Now the [Indian Child Welfare Act] is facing its most serious challenge yet. In a case that has implications far beyond the adoptions of American Indian children, three non-Native families and three Republican state attorneys general have sued the federal government saying that the ICWA relies on racial classifications that violate the equal protection clause … Read more
Find information about (Indian Child Welfare Act (ICWA) cases including the annual 2018 case update on the Turtle Talk blog.
The American Bar Association’s recently published book, “The Indian Child Welfare Act Handbook: A Legal Guide to the Custody and Adoption of Native American Children, Third Edition,” focuses on the new federal regulations of the ICWA and important cases decided during the last 10 years. Authors Kelly Gaines-Stoner, Mark C. Tilden and Jack F. Trope … Read more
A case before a federal appeals court could upend an historic adoption law meant to combat centuries of brutal discrimination against American Indians and keep their children with families and tribal communities.For the first time, a few states have sued to overturn the federal Indian Child Welfare Act, which Congress enacted in 1978 as an antidote to … Read more
Title: “Indian” as a political classification: Reading the tribe back into the Indian Child Welfare Act. Author:Elder, Allison Source:13 NW J. L. & Soc. Pol’y 410 (2018)
Title: Native American rights and adoption by non-Indian families: The manipulation and distortion of public opinion to overthrow ICWA. Author: Bual, Harman Source: 6 Am. Indian L. J. 271 (2018)
Title: Indian Child Welfare Act annual case law update and commentary. Author: Fort, Kathryn; Smith, Adrian T. Source: 6 Am. Indian L. J. 32 (2018)
Title: Why try to change me now?: The basis for the 2016 Indian Child Welfare Act Regulations. Author: Ogle, Kasey D. Source: 96 Neb. L. Rev. 1007 (2018).
The Colorado Court of Appeals issued its opinion in People in Interest of I.B.-R. on Thursday, May 17, 2018. Read the case summary at the Colorado Bar Association website.
Since the passage of ICWA in 1978, the law has been labeled the “gold standard” for child welfare laws — and not just for Indian children. Policies created under ICWA have been adopted by some states to ensure that children are only removed from their homes as a last resort. To honor the children and … Read more
Two types of challenges to the Indian Child Welfare Act (ICWA), 25 U.S.C. § 1901 et seq., now feature prominently: equal protection challenges and challenges based on the “intrafamily dispute” exception to ICWA. A petition for a writ of certiorari to decide both issues is currently pending in one such case: S.S. v. Stephanie H. … Read more
Title: Are you my father? Adopting a federal standard for acknowledging or establishing paternity in state court ICWA proceedings. Author: Heiner, Kevin Source: 117 Colum. L. Rev. 2151 (2017) Contact the National Indian Law Library if you need help obtaining a copy of the article.
Research and data from states tell us that American Indian/Alaska Native (AI/AN) children are disproportionately represented (or overrepresented) in the child welfare system nationwide, especially in foster care. This means that higher percentages of AI/AN children are found in the child welfare system than in the general population. The overrepresentation of AI/AN children often starts … Read more
Title: Escaping the ICWA penalty box: In defense of equal protection for Indian children. Author: Sandefur, Timothy Source: 37 Child. Legal Rts. J. 1 (2017)
Title: The waning of the Indian Child Welfare Act: How mediation may help save the act and preserve its original intent. Author: Wade, Alice Source: 18 Cardozo J. Conflict Resol. 829 (2017)
Cloaking its efforts in the language of civil rights, Goldwater has launched a coordinated attack against ICWA alongside evangelical and anti-Indian-sovereignty groups, adoption advocates, and conservative organizations like the Cato Institute. Since 2015, Goldwater has litigated four state or federal cases against ICWA, and filed several briefs in support of other cases. Goldwater’s stated goal … Read more
A coalition of California tribal governments, including two from the North Coast, say the state has taken a ‘monumental’ step toward addressing systematic failures to protect tribal civil rights in child custody cases. Read the full article at the Times Standard website.
The Capacity Building Center of Tribes has just published a new 8 page ICWA Guide for Tribal Governments and Leaders. Read the announcement here. Download the guide.
Title: Implementing and defending the Indian Child Welfare Act through revised state requirements. Author: Turner, Caroline M. Source: 49 Colum. J.L. & Soc. Probs. 501-549 (2016).
The issuances by the Department of the Interior of non-binding guidelines in 2015 and of legislative rules in 2016 are opportunities for states to promptly examine their current practices and standards and voluntarily adopt the guidelines and regulations as enforceable state requirements. New York State is an example of a state that has evidenced support … Read more
Targeted News Service 2016/09/09 WASHINGTON, Sept. 10 — The Government Accountability Office has issued a report on the Department of Health and Human Services assistance to tribes in implementing the another planned permanent livin… Read the article here. Read the report here.
The Indian Child Welfare act is a unique piece of legislation that governs the settlement of family law cases for children of Native American descent. Critics allege, however, that its definition of who counts as a Native American, as well as several other aspects of the law, can often work against children’s best interests. The … Read more
Justice Antonin Scalia’s death impacts Indian country in dramatic ways. Last term, the most critical tribal court jurisdiction appeal to hit the Supreme Court of the United States in decades was affirmed by a 4-4 tie in favor of tribal jurisdiction. The court declined certiorari in a pair of tribal labor relations cases where there was a gaping circuit split, possibly … Read more
Critics complain that ICWA is a race-based statute that improperly limits the options of Indian children based on their race. But no matter how you look at it, that’s just wrong. First, Indian status is not “racial” but rather “political” as a matter of law. The closest analogy to the Cherokee Nation is not a … Read more
Title: Killing the policy to save the child: Comparing the historical removal of Indigenous children in Australia to the United States and how the countries can learn from each other Author: Pollom, Drew Source: American Indian Law Journal Vol. 4, p. 256-296 (2016)
Title: American Indian children and U.S. policy Author: EagleWoman, Angelique; Rice, G. William Source: University of New Mexico Tribal Law Journal Vol. 16, p. 1-29 (2016)
Title: In the name of the child: race, gender, and economics in Adoptive Couple v. Baby Girl Author: Berger, Bethany R Source: 67 Fla. L. Rev. 295 (2016)
WASHINGTON, June 23 — The U.S. Department of Health and Human Services’ Administration for Children and Families’ Office of Planning, Research and Evaluation issued the following report: This report details 14 tribes and tribal organizations’ implementation of service coordination efforts across Tribal TANF and child welfare services. It describes the tribes and tribal organizations, explores … Read more
Title: What is Measured is What is Done: Methods to Measure Compliance with the Indian Child Welfare Act. Author: Williams, Jason R. et al. Cite: 4 American Indian Law Journal 502 (2016) Enacted more than three and a half decades ago, the Indian Child Welfare Act (ICWA or “Act”) of 1978 is one of the … Read more
Title: Indian Children and the Federal-Tribal Trust Relationship Author: Fletcher, Matthew L. M.; Singel, Wenona T. Source: Michigan State University College of Law (April 2016)
The National Indian Child Welfare Association, Native American Rights Fund, National Congress of American Indians and the ICWA Appellate Clinic at Michigan State University College of Law have published a memo covering: Synopsis of recent attacks on the Indian Child Welfare Act (ICWA) How can tribes and allies work together to help defend ICWA See … Read more
“At this point it is pretty clear that anti-ICWA advocates, who primarily represent adoption interests, have started a coordinated attack on ICWA,” said Kate Fort, Staff Attorney and Adjunct Professor for the Indigenous Law and Policy Center at Michigan State University College of Law. “They are looking for cases of opportunity in courts across the … Read more
Title: The Indian Child Welfare Act’s waning power after Adoptive Couple v. Baby Girl Author: Kruck, Kathleena Blue book cite: 109 Nw. U. L. Rev. 445 (Winter 2015)
Title: Tribal rights, South Dakota class action highlights violations of the Indian Child Welfare Act Author: Laird, Lorelei Blue book cite: 101-MAY A.B.A. J. 15 (May 2015)
The final report of the Maine Wabanaki‑State Truth and Reconciliation Commission (TRC) was released at a closing ceremony on June 14 in Hermon. In their letter in the final report, the five commissioners… state that to improve Native child welfare, Maine and the tribes must continue to confront underlying racism still found in state institutions … Read more
Title: In the name of the child: race, gender, and economics in Adoptive Couple v. Baby Girl Author: Berger, Bethany R Cite: 67 Fla. L. Rev. 295-362 (2015)
Measuring Compliance with the Indian Child Welfare Act is a research and practice brief published by: Casey Family Programs, the Center for Regional Tribal Welfare Studies at UMN, Duluth, the National Council of Juvenile and Family Court Judges, and the Minneapolis American Indian Center. Read the full copy of this 20 page report at the … Read more
The United States Government Accounting Office has issued a report on challenges faced by tribes to carry out title IV-E foster care programs. Indian tribes developing title IV-E foster care programs faced resource constraints and reported challenges adopting some program requirements. According to GAO’s interviews with tribal and Department of Health and Human Services (HHS) … Read more
The federal government and the state of Michigan show concern over potential separation of Indian children from their families and tribes through the Indian Child Welfare Act (ICWA) and the Michigan Indian Family Preservation Act (MIFPA), which include adoptive placement preference requirements for individuals seeking to adopt Indian children. Those laws again came into play … Read more
The teach ICWA initiative: an action plan. González, Lizbeth, 86-APR N.Y. St. B.J. 31-32 (March/April 2014) Indian Child Welfare Act compliance protects Native traditions and families; noncompliance can have far-reaching and even tragic consequences. Consider these suggestions so you can play a greater role in increasing ICWA compliance within your local, state and national community… … Read more
The real meaning of ICWA noncompliance. González, Lizbeth, 86-APR N.Y. St. B.J. 29-30 (March/April 2014) During my tenure as Director of Legal Services of the American Indian Law Alliance, then located at the American Indian Community House in Manhattan, I represented several expatriated Native young adults. Their protracted attempts to reunite with their people had … Read more
Best interests of an Indian child. Herne, Peter J., 86-APR N.Y. St. B.J. 22-25 (March/April 2014) Family law treatises summarize New York’s “Best Interest of a Child” standard as follows: 1. Maintaining stability for the child(ren) 2. Child(ren’s) wishes 3. Home environment with each parent 4. Each parent’s past performance….. Read the full article here.
Why applying the Indian Child Welfare Act is worth the hassle. Kane, Julie Sobotta, 57-OCT AdvocateIdaho 28 (October 2014) After practicing for many years in the area of Indian Law, I often heard complaints about the application of the Indian Child Welfare Act (ICWA) in child protection cases…. Read the full article here.
Adopting biology plus in federal Indian law: Adoptive Couple v. Baby Girl’s refashioning of ICWA’s framework. Fadia, Shreya A., 114 Colum. L. Rev. 2007-2044 (December 2014) This Note argues that the Supreme Court’s decision in Adoptive Couple v. Baby Girl creates an apparent tension in federal Indian law. The Court’s characterization of the broader aims … Read more
The Washington Post reports: A panel of Indian-country experts will recommend to Attorney General Eric H. Holder Jr. on Tuesday that tribes be allowed to criminally prosecute non-Indians who sexually or physically abuse Native American children on tribal land, saying that juveniles on reservations are living with “dire” levels of violence and poverty. See the … Read more
On September 12, 2014, the Alaska Supreme Court issued a decision that will effectively bar most Alaska Native families from asserting their rights under the Indian Child Welfare Act (ICWA) and in doing so will increase the number of Native children severed from their families and culture. In the Native Village of Tununak II v. … Read more
Protecting Native mothers and their children: a feminist lawyering approach. Joanna Woolman, Volume 40, William Mitchell Law Review, page 943-989. (2014). A mother killing her child is a shocking event. In the United States, our child protection system seeks to prevent this type of horror, along with countless other acts that harm children. Despite having … Read more
Statistics highlight the magnitude of the problem. Although they represent 1% of the U.S. population, Native American juveniles represent 2% to 3% of youth arrests in categories such as theft and alcohol possession. Similarly, they are committed to adult incarceration at a rate 1.84 times that of whites and are placed under the jurisdiction of … Read more
Protecting the rights of indigenous and multicultural children and preserving their cultures in fostering and adoption. Mark Anderson. Volume 52 Family Court Review, page 6. (2014) Article excerpt: This article examines transracial/cultural placement of children for fostering and adoption as discussed within the context of expert evidence in applications for permanent placement. Transracial/cultural placement raises the … Read more
Looking back at the Baby Veronica case, Pata said, “Everyone believed the case was strong, not just on the ICWA side, but this was a military man who had certain protections, but it wasn’t. This child was being removed from a white religious family and was going back to an Indian family, which no one … Read more
Kristen Carpenter and Lorie Graham have contributed a chapter in the forthcoming Indigenous Rights In International Law (Kirchner and Policastrin, Eds.). It looks at the international human rights issues raised by the Supreme court’s decision in Adoptive Couple v. Baby Girl. Abstract: The well-being of indigenous children is a subject of major concern for indigenous … Read more
ICWA Facts and Fiction is a new publication of the National Council of Juvenile and Family Court Judges (NCJFCJ). Visit the NCJFCJ website for a copy of this resource published in December, 2013. See also other related NCJFCJ publications. The Tribal Judicial Leadership Group, coordinated by the NCJFCJ and Casey Family Programs, and comprised of tribal … Read more
Indian Child Welfare Act — Termination of Parental Rights —Adoptive Couple v. Baby Girl 127 Harvard Law Review 368 (November 2013) In the decades leading up to 1978, large numbers of Indian families were broken up through forced adoption or foster-care placement of Indian children, usually in non-Indian homes.1 To stem this “wholesale removal of … Read more
The United States Supreme Court recently issued its opinion in the case of Adoptive Couple v. Baby Girl. This document is designed to: Summarize the decision — what the case held about the Indian Child Welfare Act (ICWA), what it did not hold, and what it implied. Provide advocates for tribes, birth parents (particularly unwed … Read more
Since 2011, the NCJFCJ has published Disproportionality Rates for Children of Color in Foster Care Technical Assistance Bulletins, which identify the disproportionality rates for all state and select Model Courts across the Country. See: Disproportionality Rates for Children of Color in Foster Care Technical Assistance Bulletin. This Bulletin, released May 2013, utilizes the most current … Read more
The constitutionality of ICWA is based on two propositions: First, these special laws for Indians are not race based. And second, Congress has the authority to issue special laws with regard to Indian people and tribes. If the Baby Girl Court rejected either of these positions, not only would ICWA be unconstitutional, most of Indian … Read more
In the context of the recent Supreme Court hearing in Adoptive Couple v. Baby Girl, Walter Olson,a senior fellow at the Cato Institute’s Center for Constitutional Studies, critiques the constitutionality of the Indian Child Welfare Act in this April 22, 2013, opinion piece at reason.com.
This second read-through, by Matthew Fletcher and Kate Fort, incorporates a broader analysis of how the argument went on the merits. Specifically, it addresses: Best Interests of the Child, Interpretation of Sections 1912(d) and (f), Assorted Weirdness — Chief Justice Roberts Edition, Assorted Weirdness — Adoptive Parents as Victim.
The Michigan Law Review just published an opinion piece: Adoptive Couple v. Baby Girl: Two-and-a-Half Ways To Destroy Indian Law. Article excerpt: “In December 2011, Judge Malphrus of the South Carolina family court ordered Matt and Melanie Capobianco to relinquish custody of Veronica, their two-year-old, adopted daughter, to her biological father, Dusten Brown. A federal … Read more
Cornell University, Legal Information Institute has published a preview of the Adoptive Couple v. Baby Girl (“Baby Veronica”) case. The oral argument is scheduled for Tuesday, April 16.
Existing Information on Implementation Issues Could Be Used to Target Guidance and Assistance to States U.S. Government Accountability Office GAO-05-290, Apr 4, 2005 Status: Closed – Not Implemented This report describes (1) the factors that influence placement decisions for children subject to ICWA; (2) the extent to which, if any, placements for children subject to … Read more
From the Lakota People’s Law Project website: Indian Child Welfare Act (ICWA) Directors in South Dakota voted 6-0 to submit a report to Congress asserting that the South Dakota Department of Social Service has for over a decade “systematically violated the spirit and the letter of the Indian Child Welfare Act.” ICWA directors are federal … Read more
The Guide is intended to answer questions and provide a comprehensive resource of information on the Indian Child Welfare Act (ICWA). The online version at http://www.narf.org/icwa was created as a complement to the print version of the Guide, which was printed by the Native American Rights Fund in 2007. While the topical sections are identical … Read more