Sunday, October 24, 2021

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 Abstract

Excerpted From: Sumaya H. Bouadi, Domestic Violence, the Indian Child Welfare Act, and Alaska Natives: How Domestic Violence Is Weaponized Against Alaska Native Survivors, 33 Yale Journal of Law & Feminism 169 (2021) (105 Footnotes) (Full Document)

 

SumayaHBouadiIn the aftermath of Adoptive Couple v. Baby Girl, much has been written on the Indian Child Welfare Act (ICWA) and the hypothetical risk that ICWA [ Indian Child Welfare Act] poses to Indian children. In particular, many claim to be concerned about the risk that ICWA [ Indian Child Welfare Act] may put the interests of the tribe “over the best interests of the child.” These arguments suggest that ICWA [ Indian Child Welfare Act] results in Indian parents maintaining custody at higher rates than non-Indian parents. However, at least within Alaska Native termination hearings that involve allegations of domestic violence, the opposite holds true. In numerous cases, under similar facts, Alaska Native domestic violence survivors face the termination of their parental rights, while non-Indian survivor parents do not. This disparate treatment both violates ICWA [ Indian Child Welfare Act] and indicates that the heightened standards of ICWA [ Indian Child Welfare Act] do not result in harm to Indian children relative to non-Indian children. Contrary to Justice Alito's hysterics on the dangers of the “ICWA [ Indian Child Welfare Act] trump card”, ICWA [ Indian Child Welfare Act] has thus far failed to equalize the treatment of Indian parents and non-Indian parents. Despite the additional statutory protections of ICWA [ Indian Child Welfare Act], Indian families still face separation at higher rates than non-Indian families, even in cases with nearly identical facts. Rather than being undermined, ICWA [ Indian Child Welfare Act] ought to be strengthened.

ICWA [ Indian Child Welfare Act], passed in order to prevent the dissolution of Indian families, establishes heightened standards and scrutiny for separation of Indian families. Among its provisions, it gives tribal courts exclusive jurisdiction over any custody case that involves an Indian child who is domiciled or resides within the boundaries of a reservation, or is a ward of the tribe. If an Indian child is not domiciled within the reservation, tribal courts have concurrent jurisdiction with state courts, and the tribal court may intervene in state custody hearings. Under ICWA [ Indian Child Welfare Act], a child is considered an “Indian child” if the child is unmarried, under eighteen, and “either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.” In order to terminate the parental rights of an Indian parent over an Indian child, “evidence beyond a reasonable doubt ... [must support] ... that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.”

Despite the heightened procedural and evidentiary protections that ought to be applied to cases of Indian children, Alaskan courts frequently perceive domestic violence inconsistently across termination cases of Indian and non-Indian children. Children's exposure to domestic violence is frequently used as a justification to terminate custody of the non-abuser Indian parent, especially if the abusive parent has a history of engaging in domestic violence. However, in cases of a non-abuser non-Indian parent, exposure to domestic violence is rarely used as justification for removal of custody of the non-abuser parent, and abuser parents can receive custody of the children, despite their prior record of abuse.

This disparate application runs counter to the intention of ICWA [ Indian Child Welfare Act], which was to enforce additional protections in the specific cases of Indian children. The United States government forcibly separated Indian children from their parents and communities, and ICWA [ Indian Child Welfare Act] served as a response to this history of forced separation and the deep harm that it caused to the tribes and individuals. Against the backdrop of this troubled history, the disparate use of domestic violence in taking away Indian children demonstrates the limitations of ICWA [ Indian Child Welfare Act].

This Note will begin by establishing the standards for the termination of parental rights, which are higher for Indian parents than non-Indian parents under ICWA [ Indian Child Welfare Act]. After establishing these standards, the Note turns to a comparative analysis of termination of parental rights cases, all of which involve domestic violence. In order to engage in this comparative analysis, all available Westlaw cases (150) which cited Alaska Statutes 47.10.088 (involuntary termination of parental rights) and mentioned domestic violence were read and analyzed in order to ensure an accurate, unbiased understanding. The Note then uses a representative set of cases from this survey to illustrate that, under very similar facts, Alaska Native survivors are disproportionately more likely to lose custody of their children than non-Alaska Natives, despite ICWA [ Indian Child Welfare Act]. This Note concludes by discussing the underlying trauma that led to the creation of ICWA [ Indian Child Welfare Act] and that continues to be perpetrated on Indian families by the state separation.

[. . .]

Despite the frequent handwringing at the possibility of ICWA [ Indian Child Welfare Act] harming the best interests of Indian children, little evidence has been mustered to support this proposition. This Note intended to test the proposition through a simple quasi-empirical experiment: if ICWA [ Indian Child Welfare Act] worked, then under similar facts, Indian parents would maintain custody more frequently than non-Indian parents, given the heightened standards of ICWA [ Indian Child Welfare Act]. As this Note illustrated, the opposite is true. In this limited case--domestic violence survivors in Alaska--non-Indian parents maintain custody in cases in which Indian parents do not. If ICWA [ Indian Child Welfare Act] were succeeding, this outcome would be incoherent, given that ICWA [ Indian Child Welfare Act] places a higher burden on the courts. If Indian and non-Indian parents lost custody at equal rates that would be a failure of ICWA [ Indian Child Welfare Act]; the fact that Indian parents lose custody at higher rates is even more troubling, and points to the failure of ICWA [ Indian Child Welfare Act] to rectify underlying issues within the judicial system. The state-sponsored separation of Indian families, rather than ending after the residential schools era, continues via the judicial system, despite these statutory protections. Rather than being phased out or weakened, ICWA [ Indian Child Welfare Act] ought to be strengthened. Renewed attention should be paid to the disparate treatment of Indian and non-Indian families by courts, judges, and the entirety of the family law system, from care workers who testify that Indian mothers do not understand the impact of domestic violence, to judges that take such statements at face value. The era of family separation has not ended, and much more must be done to preserve and value Indian families.


Yale Law School, J.D. (2021); University of Chicago, B.A. (2015).


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