Protecting our children and preserving our culture

Child Welfare Act of 1978
“Protecting our children, preserving our culture, (NICWA.org).” This is what you will
read on the very first page of the Native American Child Welfare Act page. The Native
American Child Welfare Act of 1978 (ICWA) was passed by congress under the intent to
“protect the best interest of Indian children and to promote the stability and security of Indian
tribes and families.” (NICWA.org).” NARF defines the ICWA as an act that was, “…..enacted
by Congress to protect the best interests of Indian children, and to promote stability and security
of Indian Tribes and families, by establishment of minimum federal standards for removal of
Indian children from their families and placement of such children in foster or adoptive homes
which will reflect unique values of Indian culture, and by providing for assistance to Indian
tribes in operation of child and family service programs.” By looking at these two definitions we
can already state that the act already has problems. One would be that there is no clear definition
to the ICWA, which would lead to many misunderstandings of what this specific act does. What
this paper will include are two specific cases that the ICWA had major problems with, as well as;
who is included in this bill, what is this bill, when and where can it be applied and why. In
Mississippi Band of Choctaw V Holyfield we will see the loophole that the act has and in
Adoptive Couple V Baby Girl we will see why this could have been a turning point in all cases
that fall under the ICWA. Though this law was put into place to preserve the culture of Native
Americans, what we see in the few cases is that this law does more good for the children than
trying to preserve the culture of Native American Tribes.
The Indian Child Welfare Act was passed by congress to protect and ensure the safety
among Native American children. As stated in Tribal Court Clearinghouse … “removal of Indian
children from their families and the placement of such children in foster or adoptive homes
which will reflect the unique values of Indian culture…” This specific act also states that tribal
members have a say in where these children are placed. Apart from being included in the child’s
placement, the child’s parent can petition “to transfer jurisdiction of the case to their own tribal
court” (IWCA.org). The children that can apply for the ICWA must be Native American children
who are members of a federally recognized tribe or a child that is “eligible for membership” in
the tribe that the child’s parents are a members of. (The Indian Child Welfare Act, the Need for a
Separate Law. B.J.Jones.)
According to Clearinghouse, there are four times that the ICWA is put into place. 1.
Foster care system, an Indian Child will be “temporarily” removed from his or her Indian home.
2. When Indian parents have lost all rights as parents. 3. Pre-adoption Placement 4. “Adoption
placements. The ICWA applies to proceedings that lead up to and culminate in the adoption of
an Indian child. It imposes an obligation on both public and private adoption agencies to comply
with its provisions.”
Now that we know more about this specific legislation, here is one cases that really put
this act into work. Mississippi Band of Choctaw V Holyfield 1980. This case starts with two
Native American twin boys whose parents are enrolled members of the Choctaw Indian Tribe in
Neshoba County, Mississippi. A set of twins were born 200 miles away from the parental
reservation. The parents had consented to adoption forms in a different county, ready to give
their children to a non-Indian couple. The Holyfields are a non-Indian couple who filed to adopt
the twins. The court had overruled the adoptee papers request because of the ICWA. Stating that
this matter is out of the federal jurisdiction and would be handled in tribal court. One of the
many holdings of the Supreme Court of Mississippi was that the twins were not born or raised on
the parent’s reservation under that state law. There were two findings in the first half of this
hearing. 1. “They had never been physically present there and 2. That they were “voluntarily
surrendering” their parental rights. It was stated many time that the biological parents went to
some efforts to see that their twins were born outside the reservation and promptly arrange for
their adoption. (Justia, U.S Supreme Court). From this, the court’s decision was, since the twins
were born in Harrison County, the Chancery Court could now “exercise jurisdiction over the
adoption proceeding (Justia, U.S Supreme Court).” One of the arguments was that because the
twins were “domiciled” on this specific reservation as seen in the eyes of the ICWA, the tribe
would have complete jurisdiction over this case because of that one statement. Since the ICWA
does not define the term “domicile,” the intention of the ICWA was that, “ congress clearly
intended a uniform federal law of domicile for the ICWA and did not consider the definition of
the word to be a matter or state law (Justia, U.S Supreme Court).” The term “domicile” does in
fact apply under the ICWA to the extent where it is not consistent “with the objectives of the
statute.” Meaning, because the meaning has been missing from the act itself, it was assumed that
the term domicile in this act has the same ordinary meaning. As soon as the term domicile was
cleared up, the conclusion was; the biological parents of the twins domicile is and has been the
home on the reservation, under the ICWA, it makes it the home of the twins as well, even though
they had never been there. The ICWA was created to ensure survival of Indian tribes as stated in
Jutsia, U.S. Supreme Court, it was created to help Native American children not be taken away
from what they know and help secure protection with their own culture. It was stated by the
Holyfields multiple times that the biological mother went through great lengths to ensure that the
twins be born outside the reservation. Congress did not agree, the ICWA was enacted for those
specific purposes, to ensure the children are not taken away from their tribe or culture. For the
biological parents to try to go around the act defeats the act itself. Though this was the case, the
biological parents did consent to the adoption and gave up their parental rights legally letting the
Indian twins be adopted by the Holyfields. In the next case, Adoptive Couple v Baby Girl, the
most recent case, we will see how important the ICWA is when a turn of events take place.
According to Supreme Court Media OYEZ, in Adoptive Couple V Baby Girl, the
biological mother of the baby girl gave up her daughter due to not being able to support her.
Before she gave her up, she asked the father who is a registered member of the Cherokee Nation
if he would rather pay for child support or give up his rights as father. The father texted the
biological mother back saying he would give up his rights as father, and with the “blessing” she
gave up baby girl (Veronica) for adoption. In this case minor incidents occur that make it hard to
locate the father, two and the minor incidents was due to misspelling of the biological fathers
name on the birth certificate and because the mother had marked Veronica as Hispanic instead of
Native American. During this, a couple in South Carolina started the adoption procedure and
were granted adoption of Veronica and were approved to move from Oklahoma to South
Carolina. Soon after the Cherokee Nation was finally able to identify the father, and filed an
intervention stating, “ that Baby Girl was an Indian Child under the federal Indian Child Welfare
Act.” The biological father began to state that he did not consent to the adoption and would like
to begin procedures to get baby girl back. Since baby girl did qualify for membership into the
tribe the ICWA was put into place. In November 2011 the ICWA ordered Veronica to be
returned to her biological father and denies the petition for adoption for the adoptive couple. The
Supreme Court sends this case back to lower courts to have the state law and Supreme Court
determine where to put baby girl using their own interpretation of the ICWA. The South Carolina
lower courts had determined that the biological father was a “fit and loving parent and that it is in
Veronica’s best interest to be placed with her father. (OYEZ)” In July of 2013 the S. Carolina
Supreme Court upholds the district’s decision. The final decision stated that the ICWA did not
apply to this case because the biological father had abandoned his rights before birth and never
had custody of baby girl Veronica after birth. With this holding, baby girl was taken away from
her biological father and was returned to the adopted couple.
This case gained much attention especially in Indian Country. This case had “….potential
to impact not just the future of ICWA, but also congress power to pass laws that protect Indian
tribes and people (NICWA.org).” This case was a huge game changer. Looking directly at the act
it states, that the ICWA is only enacted when it “…is dangerous for a child to remain with his or
her present custodians (SupremeCourt.gov).” Following the decision of Baby Girl people like
Marcia Zug argued that the ruling would could be an open door to overturn cases like Holyfield
or Baby Boy L.
In the research that I accomplished about the Indian Child Welfare Act, I noticed that the
problems started in the definition of the act, making it difficult for people who are trying to adopt
Native American Children. The Act states that the ICWA is put into place only when a child is in
danger of the current situation he or she is in. This act was not created to give custody to parents
who wishes to gain parental rights back. Another matter that is concerning about the act is that it
states to protect the Indian culture. This in itself is a problem, because the ICWA is only placed
when the Indian child falls under the four categories as stated about. The Indian Child Welfare
Act is misinterpret when it comes to the detail sections of the act. Many people believe that it is
placed to protect their children from being taken away to outsiders, when in reality the act is only
for children who qualify and are in danger. If this is the case, the child would go to another
Indian tribe or family members. In Mississippi Band of Choctaw V Holyfield the twins being
born 200 miles away from the tribe was the loophole that the congress did not see coming and it
was not something they could have controlled. In Adoptive Couple V Baby Girl, Veronica not
having ever been on the reservation was the start to another case. These cases in reality did set
the act to be looked at again.
Though this law was put into place to preserve the culture of Native Americans,
Mississippi Band of Choctaw V Holyfield and Adoptive Couple V Baby Girl were two cases that
did more good for the children than trying to preserve the culture of Native Americans. From
these two cases we can easily conclude that the Indian Child Welfare Act has many glitches that
still need to be fix. In Mississippi Band of Choctaw V Holyfield we saw how easy it is to go
around the act to prevent the ICWA being put into place and in Adoptive Couple V Baby Girl,
turning out to be a huge turning point in ICWA cases, we saw that the smallest of details can
make a difference in a ruling. After doing the research for not only these two cases it was very
clear that congress and the states do not know what to do when it comes to making decisions
regarding the Indian Child Welfare Act. We can assume that is why this cases can go on for
years before one decision is made. The children under the Indian Child Welfare Act should not
have to go through such hardships because the Act is interpret in many ways. This law has been
in place for 36 years and it seems like congress and the state cannot agree on how to handle a law
that should be protecting Native American Culture but most important Native American
children.
Bibliography
“Adoptive Couple V Baby Girl.” Supreme Court Of the United States. Web. 13 Nov.
2014. <http://www.supremecourt.gov/opinions/12pdf/12-399_8mj8.pdf>.
ADOPTIVE COUPLE v. BABY GIRL. The Oyez Project at IIT Chicago-Kent College
of Law. 10 November 2014. <http://www.oyez.org/cases/2010-2019/2012/2012_12_399>.
“American Indian Children and Families.” – National Indian Child Welfare
Association. NICWA, 1 Jan. 2014. Web. 13 Nov. 2014.
<http://www.nicwa.org/children_families/>.
“FindLaw | Cases and Codes.” FindLaw | Cases and Codes. Web. 13 Nov. 2014.
<http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=490&invol=30>.
Horne, Ashley, and Timothy Travis. “Court Reform and American Indian and Alaskan
Native Children.” Ncjfcj.org. Technical Assistance Breif. Web. 13 Nov. 2014.
<http://www.ncjfcj.org/sites/default/files/NICWA Court Reform and American Indian and
Alaskan Native Children.pdf>.
“Indian Child Welfare Act of 1978 (25 U.S.C. §§ 1901-63).” Full Text of Chapter 21.
Tribal Court Clearinghouse. Web. 16 Nov. 2014. <http://www.tribalinstitute.
org/lists/chapter21_icwa.htm>.
Jones, B.J. “The Indian Child Welfare ActThe Need for a Separate Law.” The Indian
Child Welfare Act The Need for a Separate Law. Web. 16 Nov. 2014.
<http://www.americanbar.org/content/newsletter/publications/gp_solo_magazine_home/gp_
solo_magazine_index/indianchildwelfareact.html>.
“Mississippi Choctaw Indians v. Holyfield 490 U.S. 30 (1989).” Justia Law. Justia US
Supreme Court. Web. 16 Nov. 2014.
<https://supreme.justia.com/cases/federal/us/490/30/>.
“Mississippi Band Of Choctaw Indians V Holyfield.” NARF.Org. Thompson/West.
Web. 13 Nov. 2014. <http://www.narf.org/icwa/federal/supreme/holyfield.pdf>.
“MISSISSIPPI BAND OF CHOCTAW INDIANS v. HOLYFIELD.” Google Scholar. Web. 16
Nov. 2014.
<http://scholar.google.com/scholar_case?case=2358461186912284415&q=Adoptive couple
v baby girl&hl=en&as_sdt=2006>.
“Native American Rights Fund, A Practical Guide to the Indian Child Welfare Act,
FAQ 3: Who Has Rights under the Act.” Native American Rights Fund, A Practical Guide to
the Indian Child Welfare Act, FAQ 3: Who Has Rights under the Act. NARF. Web. 13 Nov.
2014. <http://narf.org/icwa/faq/rights.htm>.
Voorhes, Josh. “SCOTUS Rules on “Baby Veronica” Case.” Slate Magazine. 25
June 2013. Web. 13 Nov. 2014.
<http://www.slate.com/blogs/the_slatest/2013/06/25/adoptive_couple_vs_baby_girl_scotus_
returns_baby_veronica_to_her_adoptive.html>.
Wang, Hansi Lo. “Happy Ruling For Adoptive Couple, Uncertainty For Baby Girl.”
NPR. NPR, 26 June 2013. Web. 13 Nov. 2014.
<http://www.npr.org/blogs/codeswitch/2013/06/26/195787510/Supreme-Court-Sides-With-
Adoptive-Family-In-Dispute>.

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