The Voice of the Indian Child: Enhancing the Indian Child Welfare Act Through Children's Participation

Abstract

This essay explores the promise and challenge of giving more prominence to the child's voice in ICWA proceedings in state courts. I identify legal sources of the child's right of participation in statutory provisions, constitutional law, the UN Convention on the Rights of the Child, and tribal law. The Essay also explores the considerable challenges facing representatives for children who are the subect of ICWA proceedings. Using selected cases for illustration, I argue that incorporating children's views in the ICWA calculus would move ICWA litigation toward a culture of respect for the dignity of each child and would enrich the decision-making of state court judges.

Keywords: Indian Child Welfare Act, child's voice, foster care, cultural understanding