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ERIC Number: EJ912989
Record Type: Journal
Publication Date: 2010
Pages: 15
Abstractor: ERIC
Reference Count: N/A
ISSN: ISSN-0161-6463
Contemporary Hurdles in the Application of the Indian Child Welfare Act
Waszak, Susan
American Indian Culture and Research Journal, v34 n1 p121-135 2010
In 1978 Congress passed an astonishing piece of legislation that gave Native American tribes a considerable amount of jurisdiction over matters of child custody and the adoption of their children. In 1976, the Association of American Indian Affairs gathered statistics relevant to the adoption of Indian children that Congress found "shocking [and that] cries out for sweeping reform at all levels of government." The statistics revealed that Indian children were roughly 20 percent more likely than non-Indian children to be taken from their Native homes, and the vast majority of these children were placed with non-Indian families. The Indian Child Welfare Act (ICWA) sought to remedy this situation by vesting jurisdiction with tribal courts when one of their children was in danger of leaving the tribal community through state or private efforts to terminate an Indian parent's parental rights. In this commentary, the author outlines the procedures set out in the ICWA, explores jurisdictional issues that arise when an Indian child custody case evoking the ICWA is brought to court, investigates successful attempts of the state courts in diminishing the strength of the act through judicially created exceptions--namely the "existing Indian family exception" and the "good cause" exception, and analyzes the tribes' equally successful attempts to use tribal custom as a tool in formulating their own unique rule of law in governing the affairs of their children. (Contains 67 notes.)
American Indian Studies Center at UCLA. 3220 Campbell Hall, Box 951548, Los Angeles, CA 90095-1548. Tel: 310-825-7315; Fax: 310-206-7060; e-mail:; Web site:
Publication Type: Journal Articles; Opinion Papers
Education Level: N/A
Audience: N/A
Language: English
Sponsor: N/A
Authoring Institution: N/A
Identifiers - Laws, Policies, & Programs: Indian Child Welfare Act 1978