RESPECT FOR THE INDIAN CHILD WELFARE ACT AND ITS REFLECTION ON TRIBAL SOVEREIGNTY

Abstract

here is a direct tie between a court’s or agency respect for federal and state Indian Child Welfare Act (ICWA) laws and their understanding of Tribal sovereignty. A review of state court proceedings involving Native American children reflects that states’ lack of understanding and respect for Tribal sovereignty.  That understanding is represented through the actions and failures to act by state agencies, governmental representatives, and the judiciary.  The ICWA requires the United States, every state, every Indian tribe, and territories of the United States to give "full faith and credit to the public acts, records, and judicial proceedings of any Indian tribe applicable to Indian child custody proceedings to the same extent that such entities give full faith and credit to the public acts, records and judicial proceedings of any other entity." Most of the scholarship on the ICWA attacks state court resistance as unreasonably hostile to the statutory goals at best and anti-Indian at worst. Barbara Ann Atwood, in her law review article,  Flashpoints Under The Indian child Welfare Act: Toward A New Understanding of State Court Resistance , reviews aspects of the state court resistance to ICWA and strives to present a more nuanced understanding of the reactions of state court judges to the unique aspects of ICWA.  In addition to Atwood in her article, Professor Christine Metteer has argued forcefully that state courts have defied the plain language of the federal and state ICWA because of their deep distrust of tribal courts and their entrenched resistance to the concept of tribal sovereignty .