In 1978, Congress enacted the Indian Child Welfare Act to address the “alarmingly high percentage of Indian families […] broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and institutions,” as well as the fact “that the States, exercising their recognized jurisdiction over Indian child custody proceedings through administrative and judicial bodies, have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families.” In states with large Indian populations, 25 to 35 percent of all Indian children were removed from their homes and placed into foster adoptive homes at one point in their lives.
Making the situation more alarming is that Native American children were rarely removed from their homes because of physical abuse. These children were removed and their parents judged unfit because of alleged neglect, emotional mistreatment, or abuse of alcohol. Native American parents and families were routinely judged to be unfit by non-Indian social workers and judges because these non-Indian individuals were ignorant of the traditional and cultural Indian ways of childrearing, thus resulting in a disproportionate number of Indian children being removed from their families on grounds of alcohol abuse as compared to the number of non-Indian families affected by the same addiction, and evidencing an obvious cultural bias.  According to Congressional findings, a main reason for the disproportionate removal of Indian children was “that the States, exercising their recognized jurisdiction over Indian child custody proceedings through administrative and judicial bodies have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families.” Judges charged with making these custody decisions “rarely received the expert testimony of native people who could familiarize [them] with traditional child-rearing practices,” but instead relied upon the testimony of non-Indian social workers who were ignorant of the ways and traditions of Native Americans. These social workers often advised courts that the abject poverty of many Indian families prevented them from properly parenting their children. “The result was oftentimes the judicial countenance of abusive practices of state welfare agencies.”
In enacting the ICWA, Congress declared its policy to be the protection of
the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimal Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs.
In essence, the ICWA was designed to accomplish three objectives: (1) to eliminate the removal of Indian children from their families because of cultural bias and ignorance; (2) to assure that those Indian children who do need to be removed from their families be placed in foster and adoptive homes that reflect their unique cultures and backgrounds; and (3) to encourage tribal court adjudication of proceedings involving Indian children.
Solution in ICWA—New Problems
The Indian Child Welfare Act of 1978 “established minimum federal jurisdictional, procedural, and substantive standards aimed to achieve the dual purposes of protecting the right of an Indian child to live with an Indian family and to stabilize and foster continued tribal existence.” It seems as if the ICWA has been a success, though it is difficult to tell because of the limited number of compliance studies that have taken place, and the limited generalizability of these compliance studies. However, with the ostensible success of the ICWA in improving the lives of Indian children, comes also problems. These problems arise from misinterpretation of the ICWA’s mandates, as well as from unwillingness to apply the ICWA. These problems also arise from lack of funding and lack of clarity in the language of the ICWA and the resulting BIA Guidelines. Only a few of the more substantial problems will be addressed here.
The existing Indian family exception is a judicially created doctrine holding that the ICWA does not apply to those Indian children who have never been a member of an Indian home or culture and probably never would be. Prior to the United States Supreme Court’s decision in Mississippi Band of Choctaw Indians, many states adopted the existing Indian family exception. In that case, the United States Supreme Court dealt with the status of twin babies who were born out of wedlock to parents who both were enrolled members of the Mississippi Band of Choctaw Indians (Tribe) as well as residents and domiciliaries of the Choctaw Reservation. On January 10, 1986, the twins’ mother deliberately gave birth to the twins in a county some 200 miles from the reservation and executed a consent-to-adoption form in that same county. The twins’ father signed a similar form. On January 16, 1986, the Holyfields filed a petition for adoption of the twins in the same court; and the adoption proceedings were concluded on January 28 with the issuance of a Final Decree of Adoption. The adoption decree contained no reference to ICWA or mention of the twins’ Indian background, despite the Chancery Court’s apparent awareness of both.
Two months after the Final Decree of Adoption the Tribe moved to vacate the adoption decree on the ground that the tribal court should have exclusive jurisdiction of the twins. The Chancery Court overruled the motion and held that the Tribe had “never obtained exclusive jurisdiction over the children…” That court primarily relied upon a few facts in reaching this conclusion; first, that the twins’ mother “went to some efforts to see that they were born outside the confines of the Choctaw Indian Reservation,” second, that the parents had promptly arranged for the adoption of the twins by the Holyfields, and third, that “at no time from the birth of these children to the present date have either of them resided on or physically been on the Choctaw Indian Reservation.” The Supreme Court of Mississippi subsequently affirmed the Chancery Court’s decision. That court stated that,
The Indian twins…were voluntarily surrendered and legally abandoned by the natural parents to the adoptive parents, and it is undisputed that the parents went to some efforts to prevent the children from being placed on the reservation as the mother arranged for their birth and adoption in Gulfport Memorial Hospital, Harrison County, Mississippi;
and distinguished state cases that appeared to establish that “the domicile of minor children follows that of the parents.” The Mississippi Supreme Court said that the domicile of the twins was off of the reservation and that the state court properly had jurisdiction over the adoption proceedings of those twins. In support of its position, the Supreme Court of Mississippi stated that the lower court judge “did conform and strictly adhere to the minimum federal standards governing adoption of Indian children with respect to parental consent, notice, service of process, etc.,” while at the same time concluding that the provisions of ICWA were inapplicable by stating that “these proceedings…actually escape applicable federal law on Indian Child Welfare.”
The United States Supreme Court recognized that the proceeding at issue was a “child custody proceeding” and that the children involved in that proceeding were “Indian children.” Because the twins fit into these portions of ICWA, the issues for determination by the Court were whether the state law definition of “domicile” should control, and whether under the ICWA definition of “domicile” the twins were non-domiciliaries on the reservation. The Supreme Court recognized that the language of ICWA does not define “domicile;” and that the definition is a matter of Congressional intent. The Court began with the canon of construction, stating that “in the absence of a plain indication to the contrary,…Congress when it enacts a statute is not making the application of the federal act dependent on state law.” It reached this conclusion because “federal statutes are generally intended to have uniform nationwide application,” and because of the presumption that “the federal program would be impaired if state law were to control.” Congress very clearly did not intend for the critical terms in ICWA to rely on state law for definition, and actually was quite concerned with curtailing state authority. In support, the Court states that,
Even if we could conceive of a federal statute under which the rules of domicile (and thus of jurisdiction) applied differently to different Indian children, a statute under which different rules apply from time to time to the same child, simply as a result of his or her transport from one State to another, cannot be what Congress had in mind.
In fact, the Court is concerned that a State might apply a definition of domicile that would render ICWA inapplicable, or that an “adoption brokerage business” might develop if
’s position were sustained. Mississippi
Because the United States Supreme Court determined that state law does not control the definition of “domicile,” it relied upon the term’s generally uncontroverted and widely used definition. The Court stated that domicile for adults is “established by physical presence in a place in connection with a certain state of mind concerning one’s intent to remain there.” The Court continues that the domicile of minors is determined by the domicile of their parents because “most minors are legally incapable of forming the requisite intent to establish a domicile” of their own and that the domicile of illegitimate children means the domicile of the mother.
Because the domicile of the unwed mother and father was at all relevant times on the Choctaw Reservation, the domicile of the twin babies, at the time of their birth, was also on the reservation. The Court continues that the mother’s voluntary surrender of the twins’ to the Holyfields does not render this finding of domicile on the reservation incorrect. In perhaps the most significant statement of ICWA and the portion of the opinion which most directly affects the existing Indian family doctrine, the United States Supreme Court declared that,
Tribal jurisdiction under § 1911(a) was not meant to be defeated by the actions of individual members of the tribe, for Congress was concerned not solely about the interests of Indian children and families, but also about the impact on the tribes themselves of the large numbers of Indian children adopted by non-Indians.
The Court also continues that “the protection of this tribal interest [the tribe’s ability to assert its interest in its children] is at the core of the ICWA, which recognizes that the tribe has an interest in the child which is distinct from but on parity with the interest of the parents.” In line with this position, the United States Supreme Court, with three dissenters, reversed the judgment of the Supreme Court of Mississippi and remanded the case.
As a result of Mississippi Band of Choctaw Indians v. Holyfield, which implicitly rejected the existing Indian family exception, many states have rejected the existing Indian family exception through court decision and through legislation. These states are:
Alabama, Alaska, Arizona, California, Colorado, Idaho, Illinois, Indiana, Iowa, Maine, Michigan, Minnesota, Montana, New Jersey, New York, North Carolina, North Dakota, Oklahoma, Oregon, South Dakota, Texas, Utah, and . However, some states did not read Holyfield as eliminating the existing Indian family exception. These states are: Washington California, Kansas, Kentucky, Louisiana, Missouri, Tennessee, and . Washington
Additionally, in cases where a tribe appears to have exclusive jurisdiction, but may not be able to take jurisdiction over that case for a variety of reasons, it is currently unclear whether a state court may take jurisdiction over the case. Section 1911(a) of the ICWA deals with exclusive jurisdiction vested in tribal courts. The BIA Guidelines state that where the tribe exercises exclusive jurisdiction over child custody proceedings, the state court proceeding should be dismissed. Most states have never addressed the situation, so the answer to whether a tribe may waive exclusive jurisdiction does not appear to be entirely clear.
Exclusive jurisdiction under the ICWA seems to be subject matter jurisdiction, which cannot be waived or consented to. However, at least one state has held that a tribe may waive exclusive jurisdiction under the ICWA. In the case of In the Matter of J.M., the Supreme Court of Alaska stated that in order for a tribe to waive exclusive jurisdiction, “[t]he tribe itself must have, by some prior act performed through a legally recognized procedure, conferred jurisdiction upon the [state] court.” The Court went on to state that implying a waiver of jurisdiction is inconsistent with ICWA’s objective of encouraging tribal control over decisions of custody of Indian children. Additionally, the Court stated that courts “historically have been reluctant to imply a waiver of Indian rights.” In support of its holding that exclusive tribal jurisdiction can be waived, the Supreme Court of Alaska cited to a Montana case (which did not deal specifically with ICWA, but rather with tribal jurisdiction in general): “[c]ase law also holds that procedural requirements must be strictly complied with before a state can exercise jurisdiction over a matter that otherwise would be within a tribe’s jurisdiction.”
The Court further states that states and tribes can enter into a formal agreement under
25 U.S.C. § 1919(a), whereby the tribe would be able to waive its exclusive jurisdiction. However, the Court holds that these agreements are not necessary where the state exercises jurisdiction because the tribe has clearly expressed its intent to waive jurisdiction. 25 U.S.C. §1919(a) allows states and tribes to enter into agreements with each other “respecting care and custody of Indian children and jurisdiction over child custody proceedings, including agreements which may provide for orderly transfer of jurisdiction on a case-by-case basis and agreements which provide for concurrent jurisdiction between States and Indian tribes.” This would imply that in the current type of situation, a tribe and a state could enter into agreement whereby tribal exclusive jurisdiction would be waived by the tribe’s failure to respond to the State’s request to transfer jurisdiction. The agreement would likely be interpreted as an affirmative act waiving jurisdiction, rather than as a passive act of implied waiver.
As a result, amendments to the ICWA are needed in order to ensure that Indian culture and practices are of continued vitality in the future, and to ensure that tribes are able to retain their most important asset, their people.
Clarity in Amendments
A Section by Section Analysis of the Amendments
These proposed amendments address the additional problems that have arisen as a result of misapplication of the ICWA, as well as to make clerical corrections to the ICWA. Section 4—Congressional Findings—merely makes a clerical correction to the Act’s quotation from the United States Constitution, Indian Commerce Clause. Section 11—Pending Court Proceedings—amendment (2) makes a similar clerical correction, in that mail must be sent certified in order to have a return receipt, instead of registered mail. Section 10—Full Faith and Credit makes a clerical amendment in that Congress intended that tribal proceedings and judgments in child custody determinations under the ICWA be granted full faith and credit, and the current language of the Act only gives full faith and credit to proceedings. The amendment is proposed to ensure that courts do not reach absurd results by their reliance upon the plain meaning of the existing text. Under the plain meaning of the existing text, state courts may not be required to give full faith and credit to judgments entered by tribal courts and may be permitted to re-litigate issues determined by tribal courts. This could be an absurd result in that state courts would not be required to give full faith and credit to judgments, but only to proceedings.
Section 5—Definitions—clarifies that an Indian child may have only one “Indian child’s tribe” for purposes of the ICWA. Courts, commentators, and administrators have often questioned whether an Indian child may have more than one “Indian child’s tribe” for purposes of the Act and this amendment answers the question definitively. Section 11—Pending Court Proceedings amendment (3) is an additional part of this clarification.
Section 6—Congressional Declaration of Policy and Applicability—definitively puts to rest the “existing Indian family” exception, as a way to avoid applying the ICWA. It makes absolutely clear that the exception cannot be a reason to avoid the Act’s provisions. The amendment also explains that Indian children should have the opportunity to develop and maintain relationships with family and tribe and that these opportunities may not be disallowed. Section 11—Pending Court Proceedings—amendment (5) furthers this position. Qualified expert witnesses may not be denied or refused because the child is not part of an existing Indian family.
Sections 7 and 8—Exclusive Jurisdiction over Child Custody Proceedings and Transfer of Jurisdiction to Tribal Court—have two main purposes: first, to reiterate Congress’ preference that custody determinations be made by tribal courts whenever possible; and second, to allow tribal courts to decline jurisdiction over proceedings while ensuring that decisions to decline jurisdiction be express and clear so that no ambiguities arise about the intentions of tribal courts.
Section 9—Intervention in State Court Proceedings—ensures that tribes will be permitted to intervene in all child custody proceedings involving Indian children as well as makes clear that the tribe need not have an attorney in order to intervene.
Section 11—Pending Court Proceedings—amendment subpart (4) mandates that courts recognize the unique relationship between each parent and each child and that the requirements of remedial and rehabilitative services applies individually to each child in a family.
Section 12—Tribal Affiliation Information—completely replaces the previous section, because the previous section engendered much confusion. It simplifies the language and is meant to simplify the procedures to enable adopted Indians to become members of their tribes.
25 U.S.C. §§ 1901(4) and (5) (2006).
 B.J. Jones, Mark Tilden & Kelly Gaines-Stoner, The Indian Child Welfare Act Handbook, Second Edition: A Legal Guide to the Custody and Adoption of Native American Children, 2 (
, Sec. of Fam. L. 2008) [hereinafter Jones, Tilden & Gaines-Stoner, The ICWA Handbook]. ABA
at 2-3. Id.
at 3. Id.
Matter of J.M., 718 P.2d 150 ( 1986). Alaska
B.J. Jones, Mark Tilden & Kelly Gaines-Stoner, The Indian Child Welfare Act Handbook, Second Edition: A Legal Guide to the Custody and Adoption of Native American Children (
, Sec. of Fam. L. 2008). ABA
Dept. of Int., Bureau of Indian Affairs, Guidelines for St. Courts.; Indian Child Custody Proceedings,
44 Fed. Reg. 67584 (Nov. 26, 1979).
Native American Rights Fund, A Practical Guide to the Indian Child Welfare Act, (Native American Rights Fund 2007).