Below is the abstract for “Testimony before the Commission on Native Children,” available for download on SSRN.
This letter and powerpoint were prepared at the request of the Alyce Spotted Bear and Walter Soboleff Commission on Native Children in advance of a hearing on jurisdictional issues related to the Indian Child Welfare Act. I make several recommendations:
The Commission should recommend that Congress amend ICWA to provide for effective enforcement mechanisms. Those amendments could include (1) the establishment of express rights to bring interlocutory appellate court actions at more key points in state court child welfare matters, (2) the availability of attorney fees awards for Indian parents and Indian tribes in the event that a state or private actor violates ICWA or unsuccessfully opposes the application of ICWA in a state court proceedings, and (3) the provision of adequate resources for Indian parents and Indian tribes to enforce and defend ICWA in state courts.
The Commission should also recommend that Congress codify the “good cause to the contrary” regulations and guidance, and the regulations that forbid state courts from applying the so-called “existing Indian family exception” to ICWA.
The Commission should recommend that Congress directly tie state compliance with ICWA to the continued funding of child welfare programs under Title IV-E of the Social Security Act. States could ensure compliance (and therefore funding) by reaching cooperative agreements with Indian tribes and by enacting state laws that substantially adopt ICWA as state law or otherwise strengthening the protections of Indian families guaranteed by ICWA.
Finally, the Commission should urge Congress to fulfill its duties to Indian tribes and Indian people. Indian children are the core of the federal-tribal relationship. The United States’ past failures must be remedied