Just recently I came upon a case where in I represented a client in a child custody dispute in Family Law Court. Once we got to the Court for our Custody Hearing the Judge informed me and my client that since he was an American Indian all Custody disputes had to be heard through the Indian Nation that he was from. Herein lies the division between the American Indian jurisdiction within the Family Court judicial system. The Indian Child Welfare Act determines the jurisdiction of which court system will hear cases regarding custody disputes in the judicial system. Anytime custody of an American Indian Child is at issue in the California Judicial System the Indian Child Welfare Act comes into play.
The reasoning behind the Federal Governments deference to the American Indian Tribal system is very clear because “an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions; and …… the States, exercising their recognized jurisdiction over Indian child custody proceedings through administrative and judicial bodies, have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families.”
25 U.S.C.A. § 1901 was enacted by the Federal government in to preserve the family unit with the American Indian. Over the years the American Indian family has slowly eroded as a result of modern times and the loss of children to other outside the Indian Tribe relationships. Therefore, the United States Government has made it their purpose to preserve the sanctity of the American Indian Family by enacting legislation such as The Indian Child Welfare Act to give the Indian Tribes the right to hear also custody disputes involving members of their tribe. That does not mean that they can refuse to hear the child custody case if they wish.
Article One of The United States Constitution provides that “The Congress shall have Power * * * To regulate Commerce * * * with Indian tribes” and, through this and other constitutional authority, Congress has plenary power over Indian affairs; …Congress, through statutes, treaties, and the general course of dealing with Indian tribes, has assumed the responsibility for the protection and preservation of Indian tribes and their resources.”
Therefore it is the utmost importance as Americans that we preserve our heritage and the people that inhabited the land before us. Congress had sense enough enact this legislation in the 1800’s knowing that we needed to protect this fragile group of people.
ICWA extends to any proceeding whether it be adoption, juvenile proceedings or foster care where any Indian Child is in a State Judicial system wherein the custody of the child must be determined. Usually the Courts will order that notice be given to the Tribal Nation to determine if they want to asset jurisdiction over the case.