Mississippi Child Custody Attorney Discusses the Indian Child Welfare Act

In child custody cases where the children involved are of Native American descent, it is possible that the protections of the Indian Child Welfare Act (ICWA) will be invoked. The ICWA’s status has long been that it is legally persuasive, but not binding. This means that in the thirty seven years since the statute was created, judges, adoption agencies, and others involved in child custody cases have been able to circumvent or even blatantly ignore the provisions of the Act, which was designed to protect the rights of Native Americans to raise their children in their own communities.

This year, the Bureau of Indian Affairs is updating the ICWA, and seeking a federal rule that would make it binding instead of merely legally persuasive. Ultimately, their goal is to have the rule codified in the Code of Federal Regulations. In creating the updated guidelines, the Bureau of Indian Affairs worked with tribal nations from all over the United States, as well as other Indian child welfare organizations. As part of the rulemaking process, the Bureau of Indian Affairs has also conducted public hearings on the matter.

At the public hearings, arguments on both sides of the issue were presented. Adoption attorneys and others in the adoption industry expressed their point of view, including their assertion that Native American parents do not often intervene in ICWA cases, and concerns that the ICWA could be applied to children who are not living in tribal communities, but who do have some miniscule percentage of Native American descent.

Attorneys for tribes and ICWA workers had a different perspective, and different concerns. They have experienced irritation on the part of family court judges and social services agencies when they do intervene on behalf of American Indian children. They also feel as though the judges and social workers go beyond expressing contempt, to intentionally making it hard for tribes to locate their children, which they must do in order to reclaim them. The revisions to the ICWA have recently gained the support of the American Bar Association, Casey Family Services, and the American Civil Liberties Union, among others.

As indicated by the types of comments that were provided at the public hearings on the ICWA, there is a great deal of disagreement between what American Indian tribes and social service feel is in the best interest of American Indian children. As with any child, an American Indian child is at risk for being separated from their family from the time a child custody case begins with an emergency custody hearing. When children are placed into foster homes, they are often separated from family. For American Indian children, this separation often results in placement in a foster home outside of their tribal community. From that point of departure, it is a long and difficult path to reunification. A path which, in many cases, results in the ultimate adoption of a child by non-Indian parents or a lengthy stay in the foster care system outside of their tribal community.

If your child custody case involves a child of American Indian descent, the current status of and pending updates to the ICWA are relevant to your situation. If you have questions about how the ICWA could affect your child custody case, Mississippi Child Custody Attorney Matthew S. Poole can help you. Please call our office today, at (601) 573-7429 to schedule a free, initial consultation.

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Mississippi Child Custody Attorney Discusses the Indian Child Welfare Act
Mississippi Child Custody Attorney discusses the implications of the Indian Child Welfare Act.