Indian Child Welfare Act

“ Recognition.—Congress recognizes that the Indian Self-Determination and Education Assistance Act, which was a product of the legitimate aspirations and a recognition of the inherent authority of Indian nations, was and is a crucial positive step toward tribal and community control and that the United States has an obligation to assure maximum Indian participation in the direction of educational services so as to render the persons administering such services and the services themselves more responsive to the needs and desires of Indian communities. ”

“ The Department of Education's Office of Indian Education is working to implement the No Child Left Behind Act of 2001 within the Native American community. Indian tribes, schools, and local education agencies that serve American Indian and Native Alaska children will have access to nearly $122 million in grants to improve education opportunities. In addition, the Department of the Interior's 2004 program includes over $49 million for America's tribal colleges and universities. This investment will help American Indian students reach their full potential and achieve their dreams. ”

“ One of the most serious failings of the present system is that Indian children are removed from the custody of their natural parents by nontribal government authorities who have no basis for intelligently evaluating the cultural and social premises underlying Indian home life and childrearing. Many of the individuals who decide the fate of our children are at best ignorant of our cultural values, and at worst contemptful of the Indian way and convinced that removal, usually to a non-Indian household or institution, can only benefit an Indian child. ”

“ Like the boarding school system that preceded it, this new program of removal had often-disastrous consequences. “Because the family is the most fundamental economic, educational, and health-care unit” in society, these “assaults on Indian families” contributed to the precarious conditions that Indian parents and children already faced. ”

“ Heightened protections for parents and tribes apply in this context, and while petitioners challenge most of them, the “active efforts” provision is their primary target. That provision requires “ [a] ny party” seeking to effect an involuntary foster care placement or termination of parental rights to “satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.” ”

“ The Federal Government will continue to work with local educational agencies, Indian tribes and organizations, postsecondary institutions, and other entities toward the goal of ensuring that programs that serve Indian children are of the highest quality and provide for not only the basic elementary and secondary educational needs, but also the unique educational and culturally related academic needs of these children. ”

“ State courts usually apply state law when resolving child custody issues. This would normally be true for most Indians, too. Today, Indians are citizens of the United States; the vast majority of them do not live on any reservation or Indian lands, but live (as most citizens) on lands that are wholly within a State’s jurisdiction. ”

“ Again, these detailed rules govern the child custody proceedings of U. S. citizens in state courts only because the child is also either a member of an Indian tribe or merely eligible for membership in a tribe. (The child or parents need never have set foot on Indian lands or have any desire to affiliate themselves with a tribe. [1] ) The child and his or her biological parents and relatives can all support an adoption, yet ICWA may stand in the way. ”

“ That compulsory education of Indian pupils be enforced, with liberty of choice to the parents in the selection of the schools to which their children shall be sent. The Indians are generally averse, or indifferent, to the education of their children. The withholding of rations in case of failure or neglect is usually an all-sufficient motive for prompt compliance. Then, too, the parent, if a Christian and intelligent, should be allowed to select the school for his child, and not be compelled to send it to a Government school simply because that may happen to be nearest. ”

“ Although parents of Indian children are shielded from the exercise of state jurisdiction when they are temporarily off the reservation, the Act also reflects a recognition that allowing the tribe to defeat the parents' deliberate choice of jurisdiction would be conducive neither to the best interests of the child nor to the stability and security of Indian tribes and families. ”

“ Exception.—A local educational agency may not be held liable to the United States or be subject to any penalty, by reason of the findings of an audit that relates to the date of completion, or the date of submission, of any forms used to establish, before April 28, 1988, the eligibility of a child for an entitlement under the Indian Elementary and Secondary School Assistance Act. ”

“ An Indian child may have scores of, perhaps more than a hundred, relatives who are counted as close, responsible members of the family. Many social workers, untutored in the ways of Indian family life or assuming them to be socially irresponsible, consider leaving the child with persons outside the nuclear family as neglect and thus as grounds for terminating parental rights. ”

“ The U.S. government provides limited educational and medical assistance to Indians. 99% of such assistance has gone to reservation residents, but 70% of the Indians live in cities and therefore cannot be covered. Apart from the Indian Health Service, many Indians have no access to health insurance and are often subject to discrimination and language barriers in non-Indian health services and non-tribal health facilities. ”

“ Notably, a biological parent who voluntarily gives up an Indian child cannot necessarily choose the child’s foster or adoptive parents. The child’s tribe has “a right to intervene at any point in [a] proceeding” to place a child in foster care or terminate parental rights, as well as a right to collaterally attack the state court’s decree. §§1911 (c) , 1914. As a result, the tribe can sometimes enforce ICWA’s placement preferences against the wishes of one or both biological parents, even after the child is living with a new family. ”

“ With such a start and well-meaning officers, who, when necessary, even would strictly insist that all cultivate their lands properly, most of the Indians would, within a few years, become self-supporting and also support their children. These children, as they grow up, in turn should be made to assist their parents in their home duties.
“Reservation day-schools, as a rule, should suffice also for the Indian children. In these they could surely receive such an education as is necessary for an honest and happy living. Most of the white children in country districts have no better opportunity.” ”

“ To lower costs further and promote assimilation, some schools created an “outing system,” which sent Indian children to live “with white families” and perform “household and farm chores” for them. R. Trennert, From Carlisle to Phoenix: The Rise and Fall of the Indian Outing System, 1878–1930, 52 Pacific Hist. Rev. 267, 273 (1983) . This program took many Indian children “even further from their homes, families, and cultures.” Fletcher & Singel 943. Advocates of the outing system hoped it would be “extended until every Indian child was in a white home.” ”

“ States shall in consultation and cooperation with indigenous peoples take specific measures to protect indigenous children from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child's education, or to be harmful to the child's health or physical, mental, spiritual, moral or social development, taking into account their special vulnerability and the importance of education for their empowerment. Indigenous individuals have the right not to be subjected to any discriminatory conditions of labour and, inter alia, employment or salary. ”

“ It is worth underscoring that ICWA’s directives apply even when the child is not a member of a tribe and has never been involved in tribal life, and even when a child’s biological parents object. As seen in the cases before us, the sad consequence is that ICWA’s provisions may delay or prevent a child’s adoption by a family ready to provide her a permanent home.
ICWA’s mandates do not simply touch on family matters. They override States’ authority to determine—and implement through their courts—the child custody and welfare policies they deem most appropriate for their citizens. ”

“ It is the purpose of this order to assist American Indian and Alaska Native students in meeting the challenging student academic standards of the No Child Left Behind Act of 2001 (Public Law 107-110) in a manner that is consistent with tribal traditions, languages, and cultures. This order builds on the innovations, reforms, and high standards of the No Child Left Behind Act of 2001, including: stronger accountability for results; greater flexibility in the use of Federal funds; more choices for parents; and an emphasis on research-based instruction that works. ”

“ It is clear from the evidence in this case that even though persons such as the applicants are suitable to adopt children jointly and provide them with family care, they cannot do so. The impugned provisions of the Child Care Act thus deprive children of the possibility of a loving and stable family life as required by section 28 (1) (b) of the Constitution. This is a matter of particular concern given the social reality of the vast number of parentless children in our country. ”

“ More specifically, its purpose was, in part, to make clear that in certain situations the state courts did not have jurisdiction over child custody proceedings. Indeed, the congressional findings that are a part of the statute demonstrate that Congress perceived the States and their courts as partly responsible for the problem it intended to orrect. See 25 U.S.C. § 1901 (5) (state "judicial bodies . . . have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families") . ”

“ Even if we could conceive of a federal statute under which the rules of domicile (and thus of jurisdiction) applied differently to different Indian children, a statute under which different rules apply from time to time to the same child, simply as a result of his or her transport from one State to another, cannot be what Congress had in mind. ”

“ Schools for Reservation children are compulsory, but whether they are altogether a blessing or not is still doubtful. To take an Indian child away from its own free, [Pg 155] wild life, teach it to dress in white man's clothes, eat our food, sleep in our beds, bathe in white-tiled bathtubs, think our thoughts, learn our vices, and then, having led them to despise their own way of living, send them back to their people who have not changed while their children were being literally reborn—what does this accomplish? ”

“ In general.—The Secretary shall award grants to eligible entities to enable such entities to carry out activities that meet the purpose of this section, including— `` (A) innovative programs related to the educational needs of educationally disadvantaged children; `` (B) educational services that are not available to such children in sufficient quantity or quality, including remedial instruction, to raise the achievement of Indian children in one or more of the core academic subjects of English, mathematics, science, foreign languages, art, history, and geography ”

“ As the majority notes, these preferences collectively ensure that any Indian from any tribe in the country outranks all non-Indians for adopting and fostering those whom ICWA deems to be Indian children. ”

“ The Territory has been rapidly filling up with a population of whites, who, having no voice in the government, have been unable to secure public school advantages for their children. It was estimated (in 1900) that there were 50,000 white children of school age—three times that number of Indian children of that age—who were thus deprived. A recent act of Congress enabling towns to incorporate, elect officers, and provide education for white children, will be a particular relief. For a time the Indians were allowed to manage their own educational affairs. ”

“ The education of the Indian child is an object of the most profound interest, not only to his own family but to the whole tribe. He is taught to love his country and tribe, to contemn falsehood, to reverence age, to be modest and silent; he is strictly enjoined to reward a kindness, but also to avenge an injury; to aid and guard a friend, but also to injure, by every means in his power, and relentlessly to persecute, an enemy; to abhor theft, unless it be practised on the property of an enemy, when it is called highly meritorious. ”

“ I am not altogether in favour of controlling the children in institutions. Parental control, even though it may be doubtful, is better, in the end, for a child than institutional control. I have given very careful consideration to this subject and am of the opinion that the best time to take half-castes and quadroons away from mission stations and aboriginal reserves is when they marry. If you take away a couple just married and find employment for the man in a country town and also provide him with a home, he will be able, in some fashion at least, to control his children. ”