There was a long period in American history where alarming numbers of American Indian and Alaska Native children were taken away from their Native families and placed in non-Native homes and institutions. Estimates ranging from 25 to 35 percent of all Native children were removed by both public and private agencies, and separated from their families, culture, and Native identities. The impacts of this type of assimilation on the children, their families, and the tribes are tremendous and far reaching.
In a sweeping development in federal Indian policy, Congress found “there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children” and sought to “protect the best interests of Indian children and to promote the stability and security of Indian tribes and families” by passing the Indian Child Welfare Act (ICWA) in 1978. The Act was pushed through by Representative Morris Udall of Arizona, signed by President Jimmy Carter, and placed minimum standards for the removal of Indian children from their families and required placement of children in homes reflecting the unique values of Indian culture. In keeping with the policy of self-determination, the Act provided for assistance to Indian tribes in the operation of child and family service programs, and support for tribal jurisdiction over children’s cases.
The Indian Child Welfare Act requires state agencies and courts to give Native families and tribes certain protections when a state removes a Native child from a home and places the child in foster care, pre-adoptive placements, adoptive placements, or terminates parental rights. In order for the protections of ICWA to apply, the child must be either enrolled to a tribe, or be eligible for enrollment and be the biological child of a member of a tribe.
A most fundamental protection through ICWA is that the child’s parents or custodians and tribe must be notified when a Native child is taken into state custody. Tribes have the right to intervene in cases involving their children, although in situations where a child has ties to more than one tribe, only one tribe is allowed to intervene. Intervening makes the tribe a legal party to the case, gives them access to court documents about the case, rights to state the tribe’s concerns to the court, and to advise the court on what the tribe thinks the outcome of the case should be.
Another fundamental protection of ICWA is that when a state places a child in an adoption, the preferred placement must be with members of the child’s extended family, other members of the same tribe, or with other Indian families unless there is “good cause to the contrary.” ICWA also establishes preferences for foster care or pre-adoptive placements to be with the child’s extended family, a tribally licensed and approved foster home, or an institution for children that is approved by the tribe or operated by an Indian organization that is suitable for the child’s needs.
Although the Indian Child Welfare Act applies directly to the way state courts must handle child protection cases when Native children are involved, the Act generally strengthened the recognition of tribal courts hearing cases about their children. In some circumstances tribes can have exclusive jurisdiction over child protection proceedings, meaning the state courts and agencies have no jurisdiction. In other circumstances such as when children live off the reservation or the tribe is located in a Public Law 280 state such as Alaska, tribes have concurrent jurisdiction over child protection cases. Tribes share jurisdiction with the state, so that a case may begin in either state court or in tribal court. Once a case begins in tribal court, the tribe gains exclusive jurisdiction over the case. Once a case begins in state court, tribes may intervene on the case, but tribes may also request that the state court transfer the case to tribal court. Tribes that do not have exclusive jurisdiction over child protection cases may petition the Secretary of Interior to re-assume exclusive jurisdiction.
Alaska tribal courts proceeded to hear child protection cases shortly after ICWA was enacted in spite of the challenges and objections the State of Alaska has put forward. At first the State argued that ANCSA terminated tribes in Alaska, and even if there were tribes, Public Law 280 terminated any jurisdiction they had. Another argument the State has made is that Alaska tribes need to petition the Secretary of Interior to re-assume jurisdiction in order to initiate child protection cases. Over time the State’s arguments and objections have changed since tribal status of Alaska tribes was clarified by the Department of Interior’s List of Federally Recognized Tribes in 1993 and court cases have made it clear that Public Law 280 does not terminate tribal jurisdiction, it simply makes tribal jurisdiction concurrent with the State.
While the State of Alaska has allowed tribes to intervene on cases right after the ICWA was passed, the process of notifying tribes when a tribal child is in state custody took time to improve. Other states would transfer cases to Alaska tribal courts throughout the 1980s and 1990s, but it wasn’t until 2001 that the State of Alaska recognized that the Alaska State courts are required to fully follow ICWA and transfer State cases to tribal courts under certain circumstances without the tribe having to petition the Secretary of Interior for re-assumption of jurisdiction.
In 2017 the State of Alaska took a large step forward in promulgating the Alaska Tribal Welfare Compact, "a government to government agreement, establishing a framework for tribes to provide child welfare services on behalf of the State, and recognized the tribes inherent authority to serve their citizens as they have since time immemorial".
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