Wednesday, 26 December 2012

Two Tales of the Indian Child Welfare ACt

Two Tales of the Indian Child Welfare Act

There are two stories in the media currently about the Indian Child Welfare Act (ICWA).  One is about a case pending for a decision as to whether it will be heard by the United States Supreme Court. 

The other seems to see relatively less light of day—that of the on-going call to address the high rates of removal of Lakota children in South Dakota. The case pending in front of US Supreme Court  calls for the recognition of the pernicious Existing Indian Family Doctrine in relation to the adoption of a young Cherokee child. (link to brief filed in the US Supreme Court on behalf of the child, birth father and the Cherokee Nation)

 The Existing Indian Family Doctrine allows judges—in their discretion and applying their own standards- to avoid the application of ICWA with a finding that a child is not “Indian enough” to apply ICWA, even though the child meets the application threshold of being an “Indian child” as defined in the Act.   

ICWA is on the one hand  thus presented as the villain—coldheartedly stripping children from the arms of loving parents. The great irony in this presentation is that ICWA was created to prevent just that scenario (albeit with one difference—the parents ICWA is concerned about are those of the child and not of prospective adoptive parents)—the removal of children from their families and communities. The wholesale removal of indigenous children done in the interests of assimilation was to have stopped with the passage of ICWA in 1978. The testimony  in support of the Act makes for harrowing reading.

But even more harrowing is the reality that the removals of children has not stopped. NPR called attention to this with a series aired well over a year ago. There are calls for Congressional inquiry into the practices that result in the removal of so many indigenous children.
But instead of outcries against this there instead seems to be a  determined silence about those indigenous parents in anguish and  the injustice of those actions which remove children from their parents and community.

ICWA is an important and forward thinking act. It is as necessary today as it was in 1978. The problems with the Act arise not because of the Act itself, or from any need to abolish it or give any credence to the judicial embarrassment that parades as the Existing Indian Family Doctrine. The problems arise in each instance—that in the pending US Supreme Court case and in South Dakota—when the Act is not adhered to. The problem is not the Act, but in the failure to comply, and perhaps more importantly, with those attitudes that persist in a willful ignorance about the Act which try to legitimize efforts to evade it.

Indigenous and Minority Rights: Call for Papers SLSA 2013

Call for papers
It is not too late to submit an abstract to the Indigneous and Minority Rights Stream in the SLSA 2013 conference. More information is available at this link.
The deadline for submitting an abstract in the first call for papers is January 14, 2013. The early bird registration ( with discounted price) deadline is January 28, 2013. Informal inquiries about an abstract submission for the Indigenous and Minority Rights Stream can be sent to Sarah Sargent at

Sunday, 23 December 2012

Call for Papers: University of the Gambia Student Law Review


The University of The Gambia Law Faculty will publish in September 2013 its first Student Law Review. We would welcome submissions from students, academics and law professionals. This is a call for papers with a human rights focus. The first edition will be a special edition on human rights. Please submit a 300 word abstract of your proposed article by and no later than 12.00 midday January 20 2013. The final article will be 5,000 words including footnotes (OSCOLA) and will need to be submitted by 1 May 2013.

Please send abstracts to  Fiona Batt at her email:

Friday, 14 December 2012

Calls for Summit and Congressional Investigation into Child Welfare Practices

The forced and unwarranted removal of indigenous children from their family and communities is an assimilative practice that has been decried. In the United States, the law has changed--at least on paper--to prevent the sort of wholesale removal that occured prior to the 1978 passage of the Indian Child Welfare Act.

But compliance with the requirements of ICWA and a lessening of the numbers of children that were removed from their families has been an ongoing fight ever since. It is one thing to change laws, it is another thing altogether to change practice.

For several months now concerns have been raised about child welfare practices in South Dakota. In 2011 NPR ran a report that highlighted the events that gave cause for concern about removal of Lakota children from their families and tribal communities.

In November 2012,a report detailing continuing concerns over child welfare practices was issued by "coalition of tribal directors from the state's nine Sioux tribes"

An executive summary of the report issued by the Indian Child Welfare Act Directors-- "representing six of the nine American Indian tribes in South Dakota"--
can be found here .

Further action took place with a letter sent on December 7 2012 by two US Congressman to the Assistant Secretary for Indian Affairs, which calls for "for Bureau of Indian Affairs summit and a Congressional investigation into the South Dakota Native Foster Care system".

Additional information and ways in which to get involved in this call for action can be found at the website for the Lakota People's Law Project.

It now remains to be seen what response there will be to the Congressmen's requests and the other concerns that have been raised for many long months.