Wednesday, December 01, 2021

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 Abstract

Excerpted From: Marcia Zug, ICWA'S Irony, 45 American Indian Law Review 1 (2021) (428 Footnotes) (Full Document)

 

MarciaZugThe Indian Child Welfare Act (ICWA or the Act) is under attack, again, and although the Act has faced numerous challenges in the past, the current attacks are different. Today's anti-ICWA (Indian Child Welfare Act) arguments are focused on the Act's destruction rather than its modification. However, what is particularly extraordinary about these attacks and their recent success is that they are occurring at the same time that support for the protections and policies enshrined in the ICWA (Indian Child Welfare Act) is growing.

Over the past decade, numerous states have enacted child welfare laws and policies that mirror the ICWA (Indian Child Welfare Act)'s most important protections. Consequently, this Article argues that the ICWA (Indian Child Welfare Act)'s defenders should stop trying to justify the different treatment of Indian children and families and, instead, demonstrate that the Act's protections simply ensure Indian families receive the same protections as other families.

Current attacks on the ICWA (Indian Child Welfare Act) are grounded in a misunderstanding of modern child welfare law. Anti-ICWA (Indian Child Welfare Act) advocates claim the Act harms Indian children by treating them differently than non-Indian children. However, what the ICWA (Indian Child Welfare Act) actually does is ensure Indian children receive the same protections as non-Indian children.

Child welfare ideas have evolved drastically over the past half-century. When the ICWA (Indian Child Welfare Act) was first enacted, the ideas it embraced--family preservation over termination of parental rights--were considered the best child welfare practices for all children. Over time, ideas about children's best interests changed, and the ICWA (Indian Child Welfare Act) began to conflict with new child welfare laws and policies. This conflict created the perception that the Act harms Indian children. Today, ideas regarding child welfare best practices are changing again, and modern child welfare policy substantially aligns with the ICWA (Indian Child Welfare Act). Consequently, arguments that the ICWA (Indian Child Welfare Act) requires the different and harmful treatment of Indian children have no merit. Nevertheless, these claims are being used to challenge the Act's constitutionality, and courts appear increasingly receptive to such arguments.

Unfortunately, the ICWA (Indian Child Welfare Act)'s defenders give credence to these arguments when they seek to justify the Act's alleged different treatment of Indian families, rather than objecting to the underlying assumption of difference. As the recent case Brackeen v. Zinke demonstrates, when courts accept the claims that the ICWA (Indian Child Welfare Act) requires the different treatment of Indian and non-Indian children, they may be more inclined to view the Act as harmful and more willing to find it unconstitutional. Consequently, it is imperative to change the narrative surrounding the ICWA (Indian Child Welfare Act) and challenge the idea that the Act mandates the different and harmful treatment of Indian children.

A successful ICWA (Indian Child Welfare Act) defense must establish that the Act is not just a legally permissible exercise of Congress's plenary power over Indian tribes, but that it is also morally permissible. As long as the argument that the Act encourages the harmful treatment of Indian children remains viable, the ICWA (Indian Child Welfare Act)'s future is imperiled. It is, therefore, vitally important to demonstrate that the Act does not harm Indian children; the best way to do this is to show that the ICWA (Indian Child Welfare Act)'s provisions closely align with the child welfare policies applicable to non-Indian children. Accordingly, the purpose of this Article is twofold. First, it seeks to explain why the ICWA (Indian Child Welfare Act) is under attack and, second, to demonstrate why these attacks are unjustified.

Part I of this Article will describe the recent history of child welfare policy and show how ideas regarding children's best interests have fluctuated between the divergent goals of reunification and termination. It will describe how the ICWA (Indian Child Welfare Act) originally aligned with accepted notions of best practices in the child welfare context but then diverged and that this divergence is the basis for current ICWA (Indian Child Welfare Act) challenges.

Part II will discuss recent challenges to the ICWA (Indian Child Welfare Act). It examines the Brackeen Court's decision finding the Act unconstitutional, the Fifth Circuit's reversal, and the arguments and defenses used in these types of ICWA (Indian Child Welfare Act) challenges. This Part argues that relying on federal Indian law precedent to uphold the Act is an increasingly dangerous strategy and suggests that ICWA (Indian Child Welfare Act) advocates must do more to address and debunk the perception that ICWA (Indian Child Welfare Act) treats Indian children different from and worse than non-native children.

Part III demonstrates that views regarding child welfare best practices are shifting once again and increasingly align with the ICWA (Indian Child Welfare Act). This Part examines the most challenged and controversial provisions of the Act and shows how they parallel current state and federal child welfare policy.

[. . .]

Twenty years after its enactment, it is clear the ASFA is not the panacea that was promised. State and federal policy is increasingly turning away from the ASFA's goals of quick removals and speedy terminations and focusing on family preservation. As a result, the ICWA (Indian Child Welfare Act)'s provisions once again reflect state and federal child welfare policies applicable to non-Indian children. Nevertheless, while these protections are expanding for non-Indian children, their continued applicability to Indian children is threatened.

This Article has demonstrated that current ICWA (Indian Child Welfare Act) challenges are unjustified. The goal of the ICWA (Indian Child Welfare Act) is to protect Indian children and families by ensuring Indian children are not removed from their families without justification, aiding their return when removal was necessary, and finding them safe and loving homes when they cannot be returned. This is also the goal of non-Indian child welfare legislation. Today, more than ever, the application of the ICWA (Indian Child Welfare Act) ensures Indian children are being treated the same as their non-Indian peers and, ironically, it is the ICWA (Indian Child Welfare Act) challenges that pose the biggest threat to the continuation of this equal treatment.


Marcia Zug is a Professor of Law at the University of South Carolina School of Law.


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Professor Emerita of Law
The University of Dayton School of Law

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