Reclaiming the Promise of the Indian Child Welfare Act: A Study of State Incorporation and Adoption of Legal Protections for Indian Status Offenders

28 Pages Posted: 10 Sep 2015

See all articles by Thalia González

Thalia González

University of California Hastings College of Law ; Georgetown Law Center

Date Written: Spring 2012

Abstract

The implementation, adoption, and enforcement of the Indian Child Welfare Act (ICWA) protections in status offense proceedings are inconsistent among the states and can be based on highly discretionary ad hoc determinations made by intake officers, practitioners, advocates, and judges without clear legal guidance. The lack of systemic adoption and enforcement of the ICWA's protections has led to: (1) the creation of special committees to evaluate the protections for status offenders; (2) the issuance of court decisions clearly identifying the ICWA protections that are applicable in status offense proceedings; (3) the adoption of statutes that specifically define protec- tions for Indian status offenders under the ICWA; and (4) the adoption of new court rules further clarifying the standards for inclusion of status offenses under the ICWA. If state courts do not ensure that all Indian children who come in contact with the ICWA are given full benefits of its protections and rights, the tribe's perspective on the welfare of the child will not be heard. Such silencing of tribal voices will continue to result in a loss of Indian youth to the juvenile justice system. This Article proceeds in three parts. Part I provides historical context for the passage of the ICWA. Part I identifies the specific textual provisions in the ICWA legislative history, the text of the ICWA and of the accompanying BIA Guidelines that recognizes the inclusion of status offense proceedings in which out-of-home placement occurs under the substantive and procedural framework of the ICWA. Part I also provides an overview of the current interactions between Indian status offenders and the juvenile justice system. Part II presents findings from the first national study of state laws, state court rules, and administrative policies, revealing conflicting applications of the ICWA procedural protections for Indian status offenders across the country. Part III concludes with a consideration of the implications of disparate state adoption of the ICWA protections for status offenders.

Suggested Citation

González, Thalia, Reclaiming the Promise of the Indian Child Welfare Act: A Study of State Incorporation and Adoption of Legal Protections for Indian Status Offenders (Spring 2012). New Mexico Law Review, Vol. 42, 2012, Available at SSRN: https://ssrn.com/abstract=2658499

Thalia González (Contact Author)

University of California Hastings College of Law ( email )

200 McAllister St
San Francisco, CA 94102
United States

HOME PAGE: http://https://www.uchastings.edu/people/thalia-gonzalez/

Georgetown Law Center ( email )

Washington, DC
United States

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