Bringing-Them-Home-Report-Web

alarmingly high proportion of these children were placed in non-Indian homes andinstitutions. ‘States have failed to recognise the tribal, social, and cultural standardsprevailing in Indian communities and families. The Act was passed to remedy theseproblems’ (Thorne undated page 7).The Indian Child Welfare Act 1978 gives exclusive jurisdiction to tribal courts inchild welfare proceedings about Indian children who live on or have their permanenthome on a reservation. Congress can make an exception to this rule by givingjurisdiction to a State Court. State courts have joint jurisdiction with tribal courts overwelfare matters which involve Indian children who do not have permanent residenceon a reservation. State courts must transfer jurisdiction to tribal courts if this isrequested by the parent, Indian custodian or Tribe unless one parent objects, the tribehas declined to handle the matter or the State court finds ‘good cause’ not to transferthe case (section 101).If a State court has jurisdiction over a welfare matter pertaining to an Indianchild the Indian Child Welfare Act sets out a number of safeguards for that child. TheIndian custodian of the child and the child’s Tribe can intervene and participate at anypoint in the proceedings and all parties have a right to examine all reports anddocuments filed with the court (section 102). Parties seeking orders have todemonstrate to the court that active efforts have been made to provide remedialservices. The party seeking a care order has to notify the parent, Indian custodian andthe child’s Tribe of the proceedings (section 102(d)). The Indian custodian or Indianparent has a right to court-appointed counsel (section 102(b)). Voluntaryrelinquishment must be in writing and a judge must be satisfied that the terms of theagreement are understood by the parent or Indian custodian. Voluntary consent tofoster care arrangements can be withdrawn at any time (section 103(a) and (b)).Section 105 incorporates an Indian Child Placement Principle. An emergencyremoval of a child is permitted where the child is in imminent physical danger(section 112). In these circumstances either the case must be referred expeditiously tothe tribal court or the child must be returned home.The most litigated and debated provisions of the Indian Child Welfare Act relateto the shared jurisdiction between State and tribal courts over Indian children who liveoff reservations. In Mississippi Band of Choctaw Indians v Holyfield (1989) bothparents were Indians and residents of the reservation. The mother gave birth to twinsin a town 200 miles from the reservation. The parents both signed a consent toadoption form and 31 days after the birth a Final Decree of Adoption was issued bythe Chancellor of the Court of Harrison County. No reference was made to thechildren’s Indian status anywhere in the proceedings. The Tribe sought an order tonullify the adoption decree on the basis that under the Indian Child Welfare Act it hadexclusive jurisdiction over the child. In a one page judgment the Supreme Court ofMississippi affirmed the adoption on the basis that the mother had intentionally givenbirth off the reserve and neither parent had lived on the reserve after the birth. Onappeal the US Supreme Court found that the parents had been domiciled on thereservation at the date of birth and so the tribal court had had sole jurisdiction. TheSupreme Court noted that, because three years had passed since the adoption,nullification of the adoption and separation of the twins from their adoptive parentswould cause much pain. Nevertheless the Supreme Court declined to determine the