Indian Child Welfare Act: the latest news from the US

There is a great deal that has been happening with respect to the Indian Child Welfare Act and its ability to be an effective tool to safeguard American Indian families and tribes. Recently new Bureau of Indian Affairs guidelines were announced. This was the first time since 1979 that new guidelines had been put forward. The position of the guidelines with respect to ICWA is unclear- whether these are only advisory or whether they in fact should be given weight as binding.

The Bureau of Indian Affairs has stepped forward with a plan, however, to fill that breach, through announcing a plan to issue rules interpreting the Indian Child Welfare Act that would be binding on courts.There are several public meetings and tribal consultation sessions scheduled to discuss the proposed rule. Among other things, the proposed rule continues the message that there is no “existing Indian family” exception to the application of ICWA. In other words, judges cannot determine whether or not to apply ICWA on the basis of their own perceived strength of cultural ties of the child and family to tribal culture. The proposed rule states that: “ There is no exception to the application of ICWA based on the so-called “existing Indian family doctrine.” It further provides a “non-exhaustive list” of factors that courts cannot consider in deciding whether or not ICWA is applicable.

 Post written by Dr Sarah Sargent.

Four Years after the Australian Apology: The Value of Words?

In 2008, an historic apology (here) was issued by then Australian Prime Minister Kevin Rudd to the Aboriginal Peoples of Australia.

The Australian newspaper article notes an event that was held to commemorate the four year anniversary of the apology. But as reflected in that article, “sorry” is a place to start—it is a beginning point, not a resolution.

The current Prime Minister of Australia, Julia Gillard will provide an update on the progress made since the apology next week, according to this article in the Sydney Morning Herald.

The apology addressed particularly the events of the forced separation of children from their families, something that has happened in recent history, not in the distant past, as noted in the apology:

“But let us remember the fact that the forced removal of Aboriginal children was happening as late as the early 1970s. The 1970s is not exactly a point in remote antiquity. There are still serving members of this parliament who were first elected to this place in the early 1970s. It is well within the adult memory span of many of us. The uncomfortable truth for us all is that the parliaments of the nation, individually and collectively, enacted statutes and delegated authority under those statutes that made the forced removal of children on racial grounds fully lawful.”

Today, this kind of forced removal is prohibited by Article 7(2) of the UN Declaration on the Rights of Indigenous Peoples. What seems unthinkable today was seen as good government policy only a generation or so ago.

The Australian government was not alone in its pursuit of policies of forced assimilation and forced removal of indigenous children in the belief that this was in the best interest for the children. The United States government also pursued this prior to the passage of the Indian Child Welfare Act in 1978. ( See prior posts on the subject of the Indian Child Welfare Act here and here) And controversy rages in parts of the United States over whether the Indian Child Welfare Act is being adhered to, following a report by NPR.

All of which raises the question—what are the values of words? What is the value of an apology? What is the value of the words of laws on books if not accessible or implemented and enforced? Words alone do not begin to address the situations to which they are directed. Action is required to make them meaningful. Australia, which originally opposed the approval of the UN Declaration on the Rights of Indigenous Peoples has reversed that stance. But what will be more meaningful is to heae the report of the Australian Prime Minister, and to hear what progress has been made four years after the Australian apology.

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.