The United States Supreme Court affirmed the constitutionality of the Indian Child Welfare Act in a 7-2 decision on Thursday, June 15, 2023. The decision keeps the federal law in place, for the time being.
The Indian Child Welfare Act (ICWA) is a United States federal law enacted in 1978 to address the disproportionate removal of Native American children from their families and tribes by state child welfare systems. ICWA establishes specific guidelines and procedures aimed at preserving the cultural identity and ensuring the well-being of Native American children.
Some key aspects of the Indian Child Welfare Act include:
- Purpose: ICWA seeks to protect the best interests of Native American children by promoting the stability and preservation of their families, tribes, and cultural heritage. It recognizes the unique political relationship between tribal governments and the federal government and aims to prevent the breakup of Native American families.
- Applicability: ICWA applies to child custody proceedings involving Native American children, where the child is a member of a federally recognized tribe or is eligible for membership in a tribe and is the biological child of a tribal member.
- Placement Preferences: ICWA establishes placement preferences for Native American children in foster care, adoptive placements, and other custody proceedings. It prioritizes placement within the extended family or with members of the child’s tribe, followed by placement with other Native American families. This preference is intended to ensure that Native American children maintain a connection to their tribal culture and community.
- Active Efforts and Notice Requirements: ICWA requires state child welfare agencies and courts to make “active efforts” to provide remedial services and support to prevent the breakup of Native American families. It mandates that tribes be given notice and the opportunity to participate in child custody proceedings, ensuring their input and involvement in decision-making.
- Jurisdiction: ICWA establishes tribal jurisdiction over child custody proceedings involving Native American children. It recognizes the authority of tribal courts to make decisions regarding the placement and custody of Native American children, except in exceptional circumstances. This provision does not impact custody determinations by state courts in divorces or custody actions between biological parents.
- Voluntary Relinquishment and Termination of Parental Rights: ICWA sets specific requirements for the voluntary relinquishment of parental rights and the termination of parental rights of Native American parents. It imposes safeguards to protect against the involuntary termination of parental rights based solely on cultural or socio-economic factors.
ICWA has been instrumental in protecting the rights and welfare of Native American children and preserving their connections to their tribes and cultural heritage. It has had a significant impact on child welfare practices and procedures across the United States, and especially in Oklahoma, when dealing with Native American children.
It’s important to note that the Court’s opinion did not address the equal protection claims for lack of standing. The concurrent opinion of Justice Brett Kavanaugh suggests the Supreme Court may take the issue of ICWA’s discrimination of Non-Native people back up at a later date should it be raised by a party with proper standing, such as a foster or prospective adoptive parent. Our family law attorneys suspect the Supreme Court to revisit this issue in the future if the proper facts of the case present themselves.
The issue of the Indian Child Welfare Act is an important element of every custody, foster placement, and adoption case in Oklahoma. With a large percentage of our state’s population including Native American citizens, the issue is common for family law attorneys.
The Smith Firm attorneys are prepared to assist Native American parents, prospective adoptive parents, or kinship foster parents, navigate the unique issues of the Indian Child Welfare Act. Contact us today to schedule a consultation.
