How is the Indian Child Welfare Act doing?

CILS Board member and law professor Cheyanna L. Jaffke examines ICWA’s present-day struggles with the doctrine known as the Existing Indian Family.  The abstract to her article entitled, Judicial Indifference: How Does the ‘Existing Indian Family’ Exception to the Indian Child Welfare Act Continue to Endure in the Age of Obama?appears below:

Even though Congress created the Indian Child Welfare Act (ICWA) over thirty years ago to preserve the relationship between tribes and their members, courts created, and some continue to use, the “existing Indian family” exception to avoid application of the ICWA to children and/or parents that the courts do not believe are Indian-enough for the ICWA. The continued use of the “existing Indian family” exception shows that there is either judicial laziness, indifference, or intolerance fueling the application of the “existing Indian family” exception and blemishes those states that choose to continue to apply it.

This article first discusses the need for the ICWA after a long period between the 1800s and the 1970s wherein United States policy was to attempt to assimilate American Indian children by removing 25-35% of all American Indian children from their American Indian homes and tribes and place them with non-American Indian families.

Next, the article sets forth the pertinent provisions and application of the ICWA and argues that the ICWA is still necessary because courts are seeking to remove American Indian children from their homes and place them with non-American Indian families.

The article next sets forth the “existing Indian family” exception, phoenix-like birth, death, and subsequent resurrection into United States law.

This article discusses the need to reject the “existing Indian family” exception because it ignores the plain language of the ICWA, perpetuates stereotypes and the assimilation of American Indians, ignores tribal interests, and provides inconsistency in the application of the ICWA.

Western State University Law Review, Vol. 38, No. 2, Spring 2011

CILS wishes to thank Cheyanna L. Jaffke for allowing us to re-print this article. Professor Jaffke teaches at Western State University, College of Law in Fullerton, California.