Tentative Draft No. 3 Restatement of the Law, The Law of American Indians will be presented to membership at ALI’s 96th Annual Meeting. The following entry is the Introductory Note to Chapter 3, Subchapter 2 on the Indian Child Welfare Act and Similar State Laws included in the draft.

This draft will be presented to membership at the 2019 Annual Meeting for approval. Until approved, this is not the position of The American Law Institute and should not be represented as such.

Subchapter 2 – The Indian Child Welfare Act and Similar State Laws

Reporters’ Introductory Note About the Indian Child Welfare Act and Similar State Laws

          Congress enacted the Indian Child Welfare Act (“ICWA”) in 1978, Public Law 95-608; 25 U.S.C. §§ 1901-1963, after years of hearings, deliberation, and debate, in order to remedy the “wholesale separation of Indian children from their families. . . .” Establishing Standards for the Placement of Indian Children in Foster or Adoptive Homes, to Prevent the Breakup of Indian Families, and for Other Purposes, H.R. Rep. No. 95-1386, at 9 (July 24, 1978) (“1978 House Report”); see also Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 32 (1989). Legislative testimony taken from Indian Country over the course of four years confirmed for Congress that many state and county social-service agencies and workers, with the approval and backing of many state courts and some federal Bureau of Indian Affairs officials, had engaged in the systematic, automatic, and across-the-board removal of Indian children from Indian families and placed them into non-Indian families and communities. 25 U.S.C. §§ 1901(4)-(5); see also Holyfield, 490 U.S. at 32-33. State governmental actors following this pattern and practice removed between 25 and 35 percent of all Indian children nationwide from their families, placing about 90 percent of those removed children in non-Indian homes. Holyfield, 490 U.S. at 32-33 (citing Indian Child Welfare Program, Hearings before the Subcommittee on Indian Affairs of the Senate Committee on Interior and Insular Affairs, 93rd Cong., 2d Sess., at 3 (statement of William Byler) (“1974 Hearings”)); see also American Indian Policy Review Commission Task Force Four, Report on Federal, State, and Tribal Jurisdiction 79 (July 1976) (“Task Force Four”).

          A critical aspect to the legislative history of ICWA is the “wholesale” and automatic character of Indian child removal by state actors across the nation. As the Executive Director of the Association on American Indian Affairs, William Byler, testified, the “[r]emoval of Indian children is so often the most casual kind of operation. . . .” 1974 Hearings, supra, at 19-20; see also id. at 23. During the 1974 hearings, witnesses testified on the automatic removal of Indian children without due process. Byler testified that at the Rosebud Sioux Reservation, state social workers believed that the reservation was, by definition, an unacceptable environment for children and would remove Indian children without providing services or even the barest investigation whatsoever. 1974 Hearings at 21-23. State actors made decisions to remove Indian children with “few standards and no systematic review of judgments” by impartial tribunals. 1974 Hearings at 62 (Statement of Dr. Carl Mindell and Dr. Alan Gurwitt). A member of the Sisseton-Wahpeton Sioux Tribe in South Dakota testified that state actors had taken Indian children without even providing notice to Indian families, with state courts then placing the burden on the Indian parent to prove suitability to retain custody. 1974 Hearings at 67-69 (Statement of Cheryl DeCoteau). The President of the National Congress of American Indians testified that a state caseworker came to an Indian woman’s house without warning or notice and took custody of an Indian child by force. 1974 Hearings at 224 (Statement of Mel Tonasket). Senator Abourezk, chairman of the Subcommittee on Indian Affairs, stated after hearing much of this testimony: 

[W]elfare workers and social workers who are handling child welfare caseloads use any means available, whether legal or illegal, coercive or cajoling or whatever, to get the children away from mothers they think are not fit. In many cases they were lied to, they were given documents to sign and they were deceived about the contents of the documents.

          1974 Hearings at 463. State officials often arrived to take Indian children away from their families without any paperwork. And then those children often were adopted by non-Indian families far from Indian country, similarly without documentation.

          To remedy the problem, Congress enacted the Indian Child Welfare Act, a statute designed to guarantee minimum procedural safeguards for Indian tribes and Indian children and their parents in nontribal adjudicative forums and to clarify jurisdictional gray areas between state and tribal courts. In enacting that law, Congress identified the Indian Commerce Clause “and other constitutional authority” as the source of “plenary power over Indian affairs,” which serves as the source of Congressional power to enact ICWA. 25 U.S.C. § 1901(1). Congress also cited the federal–tribal trust relationship as a separate source of power to enact ICWA. 25 U.S.C. 29 § 1902(2).

          Several states have codified Indian child-welfare statutes as well. These statutes usually include provisions identical to or consistent with the federal Act, and also provide additional clarification for the enacting state on ambiguous provisions and fill doctrinal gaps in the federal Act. One federal court has declared the Act’s placement preferences a race-based preference subject to strict scrutiny, and has declared much of the Act unconstitutional. Brackeen v. Zinke, 338 F. Supp. 3d 514 (W.D. Tex. 2018), on appeal sub nom., Brackeen v. Bernhardt (5th Cir.) (No. 18-11479). The order is stayed by the appellate court. Other courts have continued to apply the Act despite the Brackeen decision. E.g., People in Interest of M.D., 920 N.W.2d 496 (S.D. 8 2018); Interest of D.E.D.I., S.W.3d , No. 11-18-00188-CV, 2019 WL 386795 (Tex. Ct. 9 App., Jan. 31, 2019); Interest of A.M., S.W.3d , No. 08-18-00105-CV, 2018 WL 6583392 10 (Tex. Ct. App., Dec. 14, 2018).

Matthew L.M. Fletcher

Reporter, American Indian Law Restatement

Matthew L.M. Fletcher is a Professor of Law and Director of the Indigenous Law and Policy Center at Michigan State University College of Law. He is a member of the Grand Traverse Band of Ottawa and Chippewa Indians.  He sits as the Chief Justice of the Poarch Band of Creek Indians Supreme Court and also sits as an appellate judge for the Grand Traverse Band, the Hoopa Valley Tribe, the Lower Elwha Tribe, the Nottawaseppi Huron Band of Potawatomi Indians, the Pokagon Band of Potawatomi Indians, and the Santee Sioux Tribe of Nebraska.

Wenona T. Singel

Associate Reporter, American Indian Law Restatement

Wenona T. Singel is an Associate Professor of Law at Michigan State University College of Law and the Associate Director of the Indigenous Law & Policy Center; she is currently on leave to work as deputy legal counsel to Michigan Governor Gretchen Whitmer. She teaches courses in the fields of federal Indian law and natural resources law, and her research and publications address the development of tribal legal systems and tribal accountability for human rights.

Kaighn Smith, Jr.

Associate Reporter, American Indian Law Restatement

Kaighn Smith, Jr., leads Drummond Woodsum’s nationwide Indian Law Practice Group. He has represented Indian nations and their enterprises for more than 25 years in cases that focus on jurisdiction and sovereignty disputes, labor and employment relations, complex transactional disputes, environmental matters, and fishing and water rights.

Jennifer Morinigo

The American Law Institute

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