Legal Corner: The Indian Child Welfare Ace


by Cassie Pierson, Staff Attorney, Legal Services for Prisoners with Children

CCWP received a research paper, “The Marginalised Aboriginal Child: From Residential School to Prison,” by Rosemary Gibbons. Its “central focus is the Canadian Aboriginal residential school system” and it shows “how residential schools are a precursor to the prison system.” Because of its size (15 pages) , we could not reproduce it here. But we would be happy to make the whole paper available on our website, www.womenprisoners.org, or to anyone writing to us for a copy.

In October of 1978, Congress, bowing to pressure from Native American activists, passed the Indian Child Welfare Act (ICWA) as a way to remedy inconsistent federal policies and practices that had resulted in the forced assimilation of Indian children. Congress relied, in part, on surveys done by the Association on Indian Affairs which showed that prior to the ICWA, nearly 25% to 35% of all Indian children had been separated from their families and placed in foster care, adoptive homes or institutions.1
The ICWA was intended to stop the removal of Indian children from Indian families by state officials. By establishing minimum standards for state courts and agencies to follow when placing Indian children and by recognizing the importance of tribal governments in protecting Indian children, the ICWA collides head-on with state jurisdiction over family law matters. Advocates for Indian children find the ICWA an important tool and if applied correctly by the courts and social services fewer children are separated from their families.
The Indian Child Welfare Act does not apply to all child custody matters. It only applies to the following situations: 1) foster care placement, 2) termination of parental rights, 3) pre-adoptive placement, and 4) adoptive placement. The state, usually the county social services agency that has custody of the minor child, is supposed to provide written notice to the child’s tribe that the placement or court proceeding is taking place. The tribe then may intervene in the placement or proceeding.
However, three recent cases from the California Courts of Appeals show that despite the fact that the ICWA has been in effect for nearly 25 years, some social services agencies still fail to follow the provisions of the law. In each of the three, an untimely notice to the tribe was the reason the courts had to reverse and remand the cases for reconsideration under the provisions of the ICWA. Two of the mothers had their parental rights terminated by the lower courts and a total of four children were taken from their mothers’ families and placed elsewhere. The counties involved were Butte, Kern, and Orange.
drawing of a feather superimposed on barbed wireUnfortunately, space does not allow for a review of each case, but the case citations are given below so that the reader can find the case she or he may be interested in reading. However, it should be noted that in In re H. A. et al., the Court of Appeal (Fifth App. Dist.) appeared to be very frustrated that its earlier published decisions were being ignored and specifically directed that its decision be published, “[t]herefore, in yet another effort to ensure compliance with the notice requirements of the ICWA, we will set forth our expectation.” (Emphasis added).
In addition to social services agencies that fail to comply with the provisions of the ICWA, some state courts have made exceptions to the ICWA and have incorporated racial bias into law. One of those exceptions is the “significant ties” exception that some state courts have adopted and which allows the judge to determine who is an Indian child and whether or not the ICWA applies on a case-by-case basis. Courts that use the significant ties exception apply the ICWA only in cases where the existing Indian family maintains significant social, cultural or political relationship with the tribe. However, the ICWA was enacted to prevent this kind of state intervention.
State courts should not be defining or determining who is an Indian child. This is in direct opposition to the purpose of the ICWA, “…because it allows Anglo cultural biases into the picture.”2 Nowhere in the ICWA is there any language about “significant ties.”
In re Jonathan D., 2001 DJDAR 9693, (No. C037483, Super.Ct. No. J27208, California Court of Appeal, Third App.Dist. (Butte Cty.), filed Sept.5, 2001)
In re H. A. et al., 02 C.D.O.S. 11449, (No. F040764, Super.Ct. No. JD093857, California Court of Appeal, Fifth App.Dist. (Kern Cty.), filed Nov. 26, 2002)
In re Jennifer A., 02 C.D.O.S. 11105, (No. G030368, Super.Ct. No. DP005952, California Court of Appeal, Fourth App.Dist. (Orange Cty.), filed Nov. 12, 2002)
Places to contact for information:
California Indian Legal Services: 510–16th Street, 4th Floor, Oakland, CA 94612; phone: 510-835-0284 or 800-829-0284; fax: 510-835-8045; web site: www.calindian.org
National Indian Justice Center: 5250 Aero Drive, Santa Rosa, CA 95403; phone: 707-579-5507; fax: 707-579-9019; e-mail: nijc@aol.com; web site: http://nijc.indian.com


  1. Myers, Raquelle, The “Significant Ties” Exception To The Indian Child Welfare Act: Judicial Decision-Making or Incorporating Bias into Law?, National Indian Justice Center, Monograph Series, 1998.
  2. Ibid., p. 3, citing the Court in Yuvapai-Apache Tribe v. Mejia, 490 U.S. 30 (1989).