The Oncoming Storm: State Indian Child Welfare Act Laws and the Clash of Tribal, Parental, and Child Rights

Philip Jay McCarthy, Jr.

Abstract


An increasing trend has been the enactment of state laws that supplement the federal Indian Child Welfare Act of of 1978 (ICWA).1 These state laws grant Indian tribes significant statutory rights that jeopardize the constitutional rights of both children and parents. Two particular examples where such state legislation infringes upon the constitutional rights of parents and children are: (1) mandating that notice be provided to Indian tribes in voluntary adoptions that do not involve state agencies, and (2) restricting the good-cause exception of the ICWA (regarding the grounds to deviate from the placement preferences or to deny a request to transfer jurisdiction from state court to tribal court).2 Indian tribes have increased their lobbying efforts for passage of state Indian child welfare (ICW) laws due, in part, to their increased political clout in many states, which the author believes is a result of Indian gaming revenue. In the past several years, state ICW legislation has been fast-tracked through many state legislatures.3


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