US: Families Seek A Fresh Court Hearing In A Case Related To The ICWA

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Families and states seeking to replace the 1978 ICWA that favored Native Americans in foster care and adoption procedures related to Native American Children

Written By Ruchit Rastogi | Mumbai | Updated On:
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Families and states seeking to replace the 1978 ICWA (Indian Child Welfare Act) that favoured Native Americans in the foster care system and procedures in terms of an adoption involving native American children want a fresh court hearing. On October 1, the people seeking a fresh hearing, want their problem to be addressed in front of an entire panel of the appeals court judges. The challenge included non-Native American families in a lot of states who have legally adopted or want to adopt Native American Children.

The Indian Child Welfare Act

The ICWA is a law that overlooks the separation of Native American Indian children from their respective families in foster care homes or adoption cases, etc. This particular act gave the tribal government power of authority in cases related to child custody that particularly involved Indian children, by giving the tribal government special power in terms of jurisdiction such as where the child would be putting up or whether the child is a part of the tribe or not.

The Child Welfare Act was incorporated as a response to the forced removal of Native American children from their houses and from their culture as well. Before the 1978 act was enacted, numbers leading up to 25 or 30 % of Native American children were forcibly separated from their families, especially Native American Families and were sent to homes that did not have any connection to the Native American Culture. 

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The Choctaw girl case

In a case related to provisions set by the ICWA, the Supreme Court declined to mediate in settling a case on account of a Choctaw girl who had been sent to foster care with a non-Native American family in California after her biological parents were unable to provide for her. 

The couple attempted to adopt the young child, infringing upon state laws and the ICWA, in spite of the fact that the state and courts had cautioned them that the Choctaw Nation of Oklahoma had jurisdictional authority and that the objective of family reunification was very important.

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The couple was represented by a lawyer who has challenged the tribal jurisdiction in other ICWA cases. The couple declined to let go of the young girl in 2016, regardless of a court request. This resulted in the concerned court giving an order of forced separation of the girl from her foster family.

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(With inputs from AP)

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