The ICWA and Illinois: The Ins and Outs of Parental Rights for American Indian Children

 Posted on June 22, 2015 in Family Law

When it comes to parental rights, Illinois, along with other states, hold that that these rights are fundamental in our society. There are significant number of protections that have been put into place to protect parents from any government interference with the raising of children. The main tenet behind parental rights in our society is that the government can only infringe on these rights when it is in the best interest of the child to do so and the action is taking place to ensure the child’s safety.

The Indian Child Welfare Act: The Resurgence of ICWA Cases

A number of distinct cases have been putting parental rights to the test. The cases in question involve American Indian children and the Indian Child Welfare Act (ICWA), a federal law whose purpose is to protect Indian children and promote the security of Indian tribes and Indian customs.

The Background of the ICWA

The ICWA was originally enacted as a result of the terrible history of the federal government rehoming Indian children into United States boarding schools as an attempt to assimilate the children into United States culture. There was a risk that many of these tribes were dying out due to this policy, as well as a number of social workers that were removing children because they believed that the children were in poverty and did not understand the tribal customs. These children were shipped off to non-Indian families, marking the death sentence for these American Indian tribes.

How the ICWA Functions Concurrently with State Law

The ICWA works in conjunction with state law to protect American Indian children. Courts must satisfy the higher ICWA threshold before children can be removed from their American Indian parents, and when it comes to adoption, there is generally an American Indian preference for the children. Also, the ICWA creates an obligation within states that they put in good faith “active efforts” to maintain the children within the home, and provide tribes concurrent jurisdiction when it comes to cases regarding children off the reservation and exclusive jurisdiction for children residing on the reservation. All custody efforts should be made to place the child within an American Indian family over a non-American Indian family for foster care purposes.

Issues Surrounding ICWA

However, there are many situations arising where the ICWA falls short of the protections that it should be providing to children. First and foremost, many of the states are falling short in active efforts and compliance issues. In a study put out by the Government Accountability Office, 32 states were falling short of their compliance obligations. Illinois, because of it has a negligible American Indian population, has very little research devoted to its compliance level, but it does have its own ICWA procedures and standards to implement the ICWA within the state.

Also, the threshold before removing children from a home is extremely high, requiring there be evidence that demonstrates beyond a reasonable doubt that serious damage will occur to the American Indian child. By having such a high standard, it is not only harder to prove, but children may remain in foster care for longer than they should, they may remain in an abusive home for longer than they should, and by being rehomed there is the possibility of continued abuse because the insular nature of the community.

Experienced Family Law Attorneys in DuPage County

The experienced family law attorneys at Mevorah & Giglio Law Offices work daily on issues involving parental rights and custody issues and can help you learn more about your parental rights in Illinois. Contact our experienced DuPage County family law attorneys today for a free and confidential consultation.