ICWA Ruling Will Be Felt for Generations

Protesters outside of the Supreme Court on Wedneday, Nov. 9. (photo by Darren Thompson for Native News Online)

GUEST OPINION. On November 8, 1978, the U.S. Congress enacted the Indian Child Welfare Act (ICWA). Its passage followed “more than four years of hearings, deliberation, and debate, to alleviate a terrible crisis of national proportions – the ‘wholesale separation of Indian children from their families….’ ”

Historically, the U.S. has been responsible for protecting and preserving Indian tribes and their resources. In passing ICWA, the clear intent of Congress was to “protect the best interest of Indian children and to promote the stability and security of Indian tribes and families.”

Congress emphasized the “special relationship” the United States has with Indian tribes and tribal members and that the U.S. has a direct interest, as trustee, in protecting Indian children who are members of, or are eligible for membership in, an Indian tribe. Congress also found “that there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children.”

Stated differently, Indian children are the heart of the Indian Child Welfare Act.

The oversight and enforcement authority of ICWA was left to state court judges. Consequently, a thorough understanding of the law and the history of Indian people is indispensable if judges are to make the correct decisions in child protection cases involving Indian children.

As a children’s court judge presiding over ICWA cases for more than 17 years, I learned that judicial competence requires knowledge, experience, compassion and empathy that will be lacking if you devote your time to only hearing cases, entering rulings and moving on to the next case. In short, judges and other child protection stakeholders must experience their community away from the courthouse and the office.

To that end, I accepted an invitation to serve on the New Mexico Tribal-State Judicial Consortium, where state and tribal judges engage in joint efforts to enhance our abilities to serve all litigants and consider and propose revisions to our laws. Our gatherings are frequently conducted in tribal communities and include shared meals and cultural ceremonies with the community’s members.

I was further educated by my participation in the Child Abuse and Neglect Institute presented by the National Council of Juvenile and Family Court Judges. The Institute includes training on the implementation of ICWA and on the history of U.S