You may have seen the recent news story out of Santa Clara, California where a six-year-old girl is caught up in a custody battle between her foster parents, who have raised her since age two, and the Native American tribe in which the child’s ancestry lays. At the center of the dispute is the Indian Child Welfare Act, and while you may not often hear about the Indian Child Welfare Act, it’s important to understand the Act and it parameters in the event that it could affect someone you care about.
First enacted in 1978, Congress passed the Indian Child Welfare Act with the purpose of keeping Native American families intact. Congress intervened because thousands of Native American children were being removed from their families and placed into non-Native American homes, removing the children from their cultural and historical communities and customs.
The Act’s goal is to strengthen and safeguard tribal nations for future generations by ensuring Native American children remain in indigenous homes. As evidenced by the Act, the United States has expressed a strong interest in keeping natural, blood-line families intact, and the official policy of the United States, since at least the enactment of this Act in 1978, has been to ensure the stabilization and continuation of the Native American family.
Specifically, the Act sets federal requirements that apply to state child custody proceedings that involve Native American children who are members of, or are eligible for membership in, a federally recognized Native American tribe.
In practice, the Act gives tribal governments a strong voice concerning child custody cases that involve Native American children by allocating to the tribes exclusive jurisdiction or control over cases where the child resides, or is domiciled on, the tribal reservation, or where the child is a ward of the tribe. In cases where the child neither resides on the reservation nor is a ward of the tribe, the tribes are given concurrent, but presumptive, jurisdiction over a non-reservation Native American child’s foster care placement proceedings.
The case involving the six-year old girl from Santa Clara pits the foster parents, who have had custody of and raised the child since she was two years old, against the Native American tribe, who maintain the best interests of the minor child would be best served by returning her to her blood family in the Choctaw Nation. It will be interesting to keep an eye on this case, as a strict interpretation and enforcement of the Act would seem to dictate the child’s removal from her foster parents.
However, the first time the State tried to remove the child from the foster parents, their efforts were frustrated when a majority of the neighborhood in which the child lives physically prevented her removal. Despite the foster parent’s eagerness to adopt the child, the Choctaw Nation maintains it only wants what is best for the child, while maintaining the tribe’s faith, family, and culture.
We will have to stay tuned on how this plays out, but the take-away from this complex situation is to have a general awareness of the implications and potential impact that the Indian Child Welfare Act can have on minor children who are of Native American descent.
Attorney Russell J. Frank is a partner at CPLS, P.A. and focuses his practice areas on family and marital law. Contact Attorney Frank today to discuss any family or marital legal issues you may be experiencing at firstname.lastname@example.org.