The Existing Indian Family Exception to the Indian Child Welfare Act: The States' Attempt to Slaughter Tribal Interests in Indian Children

• Author: Cheyañna L. Jaffke
• Position: Professor of Law at Western State University College of Law
• Pages: 733-762

Page 733

Professor of Law at Western State University College of Law; J.D. University of Idaho, College of Law, 1996; LL.M. in Taxation, University of Washington School of Law, 1997. This article financed by a grant from Western State University College of Law. Thanks to my research assistant, Christina S. Bateman. Thanks to Librarian Anne Rimmer for her invaluable research assistance. Thanks to the faculty and the administration at Western State for their support and comments on the article. Thanks to California Indian Legal Services for its work on California SB 678 and allowing me to work with them in support of SB 678.

Introduction

Pretend for a moment that War of the Worlds¹ is not science fiction, but rather reality. Instead of the Martians dying, they actually live and govern humans. At first, the policy of the Martian government toward humans is assimilation. They want all humans to think and act like Martians. Therefore, they passed rules and regulations to further that policy. The policy of assimilation targets the youngest and most vulnerable humans, our children. This policy resulted in human children being taken from their human parents' homes and raised by Martian families. Human children began to lose their identity as humans but could not take on the identity of Martians, because they did not look like Martians. So the human children tended to lack an identity, which resulted in cultural confusion, rejection by Martian society, and drug and alcohol abuse.

After several decades of this policy, the Martians enact a new policy that favors humans raising human children. However, some of the courts on Mars, refused to apply this policy to human children if the children or the parents are not "human enough." Despite the Martian government's desire to rectify past policies of assimilation with the new law, some of the Martian judicial Page 734 officers believe they know what is best and ignore the interests of the children, the parents, and the human race.

Fortunately for us, Martians are science fiction. However the previous scenario imitates what has happened to American Indian tribes and American Indian children over the years. The federal government had a policy of assimilation that resulted in Indian children being removed from their Indian homes and placed in non-Indian homes or boarding schools. The federal government tried to rectify this past policy of assimilation with the Indian Child Welfare Act (ICWA or the Act). The ICWA provided special rules for the removal or the adoption of Indian children. The ICWA gave tribes interests and rights regarding Indian children. In doing so, the federal government recognized that the tribes have the most to lose.² The ICWA assumed that state courts would observe the federal mandate and apply the statute uniformly.³

Unfortunately, some state courts have created a judicial exception to the ICWA, known as the "existing Indian family" exception. These courts use this exception to avoid applying the ICWA to the detriment of the tribes and the Indian children. Despite the Act's clear definitions and determination of when it applies, the exception was fashioned to ignore the plain language and policies of the Act. This exception, in violation of the Act, places the determination of whether a child is an Indian and subject to the Act in the hands of state court judges, who are least likely to be able to answer the question.

The first section of this article discusses the enactment of the Indian Child Welfare Act, including the history that led up to the Act and the congressional policy behind it. The second section of this article discusses the relevant portions of the ICWA. The third section of this article introduces and defines the "existing Indian family" exception. The fourth section argues that the "existing Indian family" exception is wrong for five reasons. First, it ignores tribal interests. Second, it violates the plain language of Page 735 the ICWA. Third, it perpetuates an Anglo stereotype of American Indians. Fourth, the ICWA does not need the exception to be constitutional. Finally, the exception violates the principle of uniformity that Congress was trying to achieve. The final section presents what California has done, or attempted to do, in response to the exception and will then argue that it is a model for the nation.

I Enactment of the ICWA

A Historical Background

The "wholesale separation of Indian children from their families" was widely viewed as the "most tragic and destructive aspect of American Indian life."⁴ The separation started with white-run boarding schools dating back to the 1800s, when American Indian children were removed from their homes in an attempt to assimilate them into white culture.⁵ It continued in the 1960s and 1970s, when state welfare workers and other officials worked hard to find non-American Indian homes for American Indian children, because of a lack of cultural sensitivity, and paternalistic and assimilationist motives.⁶

The state officials used high rates of alcoholism and poverty, as well as poor housing, lack of modern plumbing, and overcrowding⁷ as justifications for removing these American Indian children from their homes.⁸ When judging the fitness of an

American Indian parent, many social workers made decisions based on white middle class norms that were not appropriate in the Page 736 context of an American Indian family.⁹ Social workers cited low-income, joblessness, poor health, and low educational attainment as reasons to remove an American Indian child from his or her American Indian home.¹⁰ These factors resulted in the social worker finding neglect or abandonment where none actually existed.¹¹ By 1978, over ninety percent of adopted American Indian children had been placed in non-American Indian homes.¹²

Surveys in 1969 and 1974 conducted by the Association of American Indian Affairs (AAIA) found that approximately twenty- five to thirty-five percent of all American Indian children were separated from their families and placed in non-American Indian foster homes, adoptive homes, or institutions.¹³

B Congressional Intent

These issues led Congress to enact the Indian Child Welfare Act. Congress was concerned with not only American Indian families, but also the American Indian community.¹⁴ The ICWA was established to aid tribes in keeping American Indian children in their American Indian community.¹⁵

Congress made an explicit policy statement in the ICWA that it was to "protect the best interests of Indian children . . . by the establishment of minimum Federal standards for the 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."¹⁶ This policy statement requires states to Page 737 consider American Indian culture when determining what is in the best interest of an American Indian child.¹⁷

1. Congressional Findings

When it enacted the ICWA, Congress made specific findings within the Act itself. First, Congress recognized that there is a "special relationship between the United States and the Indian tribes and their members."¹⁸ That relationship is a trustee relationship in which Congress has a direct interest "in protecting Indian children who are members of or are eligible for membership in an Indian tribe."¹⁹

Second, Congress also recognized a "Federal responsibility to Indian people."²⁰ That responsibility arises from Congress' general course of dealing with American Indian tribes, statutes, and treaties.²¹ This responsibility includes "the protection and preservation of Indian tribes and their resources."²² The resources at issue in the ICWA are American Indian children, because this resource is "vital to the continued existence and integrity of Indian tribes."²³

Third, Congress stated that its power to enact the ICWA came from its plenary power over Indian affairs through clause 3, section 8, article I of the United States Constitution and other constitutional authority.²⁴ It enacted the ICWA in response to an alarmingly high percentage of American Indian families destroyed by the unwarranted removal of their children by non-tribal public and private agencies which placed these children with non- American Indian foster and adoptive homes and institutions.²⁵ In Page 738 enacting the ICWA, Congress acknowledged that the states had "often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families."²⁶

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