Friday, 30 December 2011

The Indian Child Welfare Act: A Long Way to Go

In an earlier post to the blog, I wrote about the Indian Child Welfare Act (ICWA) , and a recent decision by the Kansas Supreme Court to over-rule the use of the "existing Indian family" doctrine. This doctrine was judicially created and allowed a judge to determine that the Indian Child Welfare Act, and the attendant protections it provided, would not apply in a particular case. The doctrine was long criticised as being in conflict with the plain language of the Act, and the Kansas decision is in some ways a symbolic one as well as judicially important, given that the Kansas courts invented the doctrine in the first place.

Antipathy to the Act neither began nor ended with the “existing Indian family” doctrine. If the Kansas Supreme Court decision marks an important milestone in the doctrine falling out of favour, much work remains to be done to meet the effective implementation of the Act. And this is surprising, given that this Act dates from 1978!

IWCA, as American federal law, applies to all American states. It was passed in response to the decades-long practice of removal of children from their families and communities in the view that assimilation was in the best interests of indigenous children. ICWA was designed to counter the practices that led to the removal of large percentages of children from their families and communities.

But there is of course a world of difference between a law on the books and laws being actually implemented in a meaningful and effective way. This link here provides both an overview of the Act and commentary on the problems of it being adhered to.

In late 2011, NPR broadcast the results of its investigation into the implementation of the Indian Child Welfare Act. The broadcast and related information can be located at this link.

The existing Indian family doctrine and the thinking that led to resistance to ICWA is hopefully on the wane, but there still is a long way to go.

Written by Sarah Sargent.

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