Earlier this week the Fifth Circuit Court of Appeals released an extensive opinion on the Indian Child Welfare Act. Lawyers immediately started to examine its potential effect on legal processes in place for more than 40 years. An attorney with the American Civil Liberties Union says much of the law still stands, but some important protections have been found unconstitutional.
ACLU’s Stephen Pevar says he is dismayed to find that valuable ICWA protections have been ruled unconstitutional.
He notes in particular two requirements on state courts or agencies that have been found to invade state sovereignty. The language in the ruling is that they, quote, “commandeer state actors.”
One of those requirements is that courts must hear testimony from a qualified expert witness before removing Native children from their homes.
Pevar says the expert is ideally a member of the same tribe as the child.
He says Congress put that provision in place because before ICWA, children were removed from their homes for situations acceptable under tribal customs.
“On many reservations it’s not only normal but encouraged that children spend weeks if not months living with the grandmother or grandfather, or an aunt or uncle, and many state court judges and social workers were viewing that as abandoned.”
He says the expert witness can testify that an action is not traditional and that under tribal customs it does present a risk to a child.
Pevar also notes that the Fifth Circuit found it unconstitutionally burdensome to require state agencies to make active efforts to keep families together before removing children. He says those efforts include having trained social workers assist families to fix what’s broken.
“This ‘active-efforts’ requirement is a wonderful thing, and it’s saved a lot of families from breakup.”
The appellate ruling does not take effect until June 1, and it is binding only on courts in Texas, Louisiana, and Mississippi, the states in the Fifth Circuit. Pevar says the case is likely to be granted a hearing at the U.S. Supreme Court.