Exploring Indian Child Welfare Act implementation and case outcomes

Despite the passage of the Indian Child Welfare Act (ICWA) more than four decades ago, little is known about how or how well it is being implemented into practice by the state courts or how implementation may be related to improved outcomes for Indian children and families. This study explores how ICWA implementation in five state court sites is related to case outcomes. One hundred and fifty-one ICWA cases were reviewed for factors including active efforts findings, tribal presence at hearings, use of qualified expert witness (QEW) testimony, notice, and confirmation of ICWA status. Results are mixed. Specific ICWA implementation measures and aggregate measures were mostly not related to outcomes, but early implementation, such as having the tribe present at the first hearing, did appear related to timely permanency. Implications of these findings and future research directions are discussed.     

Punishment in Indian Country: Ironies of Federal Punishment of Native Americans

Native Americans are US citizens, but they are also tribal nationals subject to complex and unique criminal jurisdiction arrangements over Indian lands. Tribal nations typically have tribal court jurisdiction over less serious crimes, but for serious crimes the federal justice system often supersedes tribal authority, exposing Native Americans to more severe punishments. In addition, recent federal programs have attempted to foster greater tribal/federal criminal justice coupling. Yet, examinations of criminal punishment of Native Americans are few, and most are outdated and/or of very limited generalizability. We examine the punishment of Native American defendants in federal court, focusing on 28 federal districts with substantial Indian presence. Using recent US Sentencing Commission data, as well as contextual data from the Bureau of Indian Affairs and tribal courts, we focus on differences in the federal sentencing of Native American defendants, and how these differences are conditioned by indicators of tribal-federal criminal justice coupling.     

Truth and Consequences: Law,Myth and Metaphor in American Indian Contested Adoption

This article considers the effects of the operations of myth and metaphor on law through a comparison of a United States Supreme Court decision and a novel that deal with the contested trans-racial adoption of an American Indian child. It argues that the United States founding myth of Manifest Destiny—of the divinely ordained fate of the continent to host a (white) Christian state—is determinative of the way in which legal decisions regarding American Indians are made. The myth of Manifest Destiny contains a metaphor of vanished American Indians, such that contemporary American Indians are rendered nearly invisible and whose existence is not easily absorbed into the working of the American legal system. The American Indian Child Welfare Act provides protections against assimilation for indigenous families and community, thus working at cross-purposes to the ultimate aim of Manifest Destiny. What happens in those instances when legal provisions and interpretation run counter to Manifest Destiny? Through the consideration of the situation of a contested adoption, this article reveals the heavy influence of Manifest Destiny in the Supreme Court decision, which is counter to the vision of a pluralistic culture envisioned in both the novel and the Indian Child Welfare Act (ICWA) itself. The consequences of legal resistance to ICWA for American Indian communities and as to the operation of the legal system itself are discussed.     

"Son Of CDA": The Constitutionality Of The Child Online Protection Act Of 1998

In 1998, Congress passed a second law to regulate online content in the name of protecting children. Although the Child Online Protection Act is arguably a more narrowly tailored approach to protecting children from online indecency than the Communications Decency Act of 1996, the COPA still suppresses a large amount of speech that adults have a constitutional right to receive. This article explains the two laws, analyzes how courts have treated them and finds that while there are slight differences between the two laws, the courts have thus far held that these differences are insignificant compared to their shared constitutional defects. The article recommends that Congress stop attempting to enact laws that technology and parental control make unnecessary and that would harm freedom of expression.     

Indian Self-Determination and Education Assistance Act amendments--BIA, IHS. Notice of proposed rulemaking

The Secretaries of the Department of Interior (DOI) and the Department of Health and Human Services (DHHS) propose a joint rule to implement section 107 of the Indian Self-Determination Act, as amended, including Title I, Public Law 103-413, the Indian Self-Determination Contract Reform Act of 1994. A joint rule, as required by section 107(a)(2)(A)(ii) of the Act, will permit the Departments to award contracts and grants to Indian tribes without the unnecessary burden or confusion associated with having two sets of rules for single program legislation. In section 107(a)(1) of the Act Congress delegated to the Departments limited legislative rulemaking authority in certain specified subject matter areas, and the joint rule addresses only those specific areas. As required by section 107(d) of the Act, the Departments have developed this proposed rule with active tribal participation, using the guidance of the Negotiated Rulemaking Act.     

Improving juvenile dependency courts:Twenty-Three Steps

New federal support for improvement in the handling of child welfare cases has made it possible for juvenile and family court judges to assess how well courts are implementing the Adoption Assistance and Child Welfare Act of 1980. This article first describes the purposes of the Act, and then suggest 23 steps to consider in attempts to improve the court process.     

Legitimizing American Indian Sovereignty: Mobilizing the Constitutive Power of Law through Institutional Entrepreneurship

Extensive sociolegal scholarship has addressed the utility of law as a mechanism through which marginalized groups may promote social change. Within this debate, scholars employing the legal mobilization approach have thus far highlighted law's indirect impact, beyond the formal arenas of law, via effects on the "legal consciousness" of reformers and would-be reformers. This article contributes to this debate, and the legal mobilization framework in particular, by theoretically identifying and empirically documenting ways through which the constitutive power of law may be effectively used by challengers to more directly pursue changes in institutionalized practices themselves. The article examines the strategic use of law by a set of American Indian tribal leaders in the state of Washington who, over a 13-year period, consciously meshed or "cohered" legal and extrajudicial efforts to gain recognition of their sovereign political status. Through a mode of agency known as "institutional entrepreneurship," they utilized the multiplicity of law and exploited resources and opportunities inhering within the state itself, but outside the courts. In the context of ambiguous legal precedent and widespread local challenges to tribal rights, they mobilized latent discourses of federal Indian law that legitimated the sovereign governmental status of tribes. Importantly, they circulated tribal sovereignty discourses well beyond the field of law, but through the authoritative activity and voice of the state, and in doing so, generated a precedent-setting recognition of tribal sovereignty.     

Perceptions of the Process: Indian Gaming as it Affects Federal Tribal Acknowledgment Law and Practices*

This paper places federal acknowledgment practices within a context of expanding Indian gaming. It argues that gaming has changed the discourses around tribal acknowledgment in the general public, at the Bureau of Indian Affairs, and in inter‐ and intra‐tribal politics. Ethnographic and archival research show that, while gaming has proven to be a highly effective development strategy, it has also given rise to backlash against, and suspicion towards, Indian groups seeking recognition of their tribal status. The intersection of acknowledgment practices with public perceptions about Indian gaming has resulted in an increased politicization of the administrative process for federal recognition.     

Federal Trade Commission's authority to regulate marketing to children: deceptive vs. unfair rulemaking

Food and beverage marketing directed at children is of increasing concern to the public health and legal communities. The new administration at the Federal Trade Commission and abundant science on the topic make it a particularly opportune time for the government to reconsider regulating marketing directed at youth. This Article analyzes the Commission's authority to regulate food and beverage marketing directed at children under its jurisdiction over unfair and deceptive acts and practices to determine which avenue is most viable. The author finds that the Federal Trade Commission has the authority to regulate deceptive marketing practices directed at vulnerable populations. Although the Commission can issue individual orders, its remedial power to initiate rules would better address the pervasiveness of modern marketing practices. The Commission does not currently have the power to regulate unfair marketing to children; however, even if Congress reinstated this authority, the Commission's authority over deceptive marketing may be preferable to regulate these practices. Deceptive communications are not protected by the First Amendment and the deceptive standard matches the science associated with marketing to children. The Federal Trade Commission has the authority to initiate rulemaking in the realm of food and beverage marketing to children as deceptive communications in interstate commerce, in violation of the Federal Trade Commission Act. However, to effectuate this process, Congress would need to grant the Commission the authority to do so under the Administrative Procedures Act.     

ALL CHILDREN ARE NOT CREATED EQUAL: PRWORA'S UNCONSTITUTIONAL RESTRICTION ON IMMIGRANT CHILDREN'S ACCESS TO FEDERAL HEALTH CARE PROGRAMS

The lack of health insurance for children is a serious problem in the United States, especially for those children in families that earn too little to get private health insurance and too much to qualify for Medicare. Even within this subclass of children, immigrant children are particularly vulnerable to the problems faced by lack of health care. Nevertheless, with the passage of the Personal Responsibility and Work Reconciliation Act (PRWORA) by Congress, equality interests of low‐income immigrant children are undermined when immigrant children are denied federal benefits for the first 5 years of residency in the United States. The first part of this Note examines the importance of child health care and the long‐term problems with uninsured children, especially with uninsured immigrant children and pregnant women. The next part introduces Medicaid as well as State Children's Health Insurance Program, a supplemental federal program designed to increase health care coverage to all children, while contrasting these programs in light of the restrictive anti‐immigrant PRWORA provisions. The third part explains the passage of PRWORA, its anti‐immigrant provisions, and how these provisions prevent needy immigrant children from receiving federally funded health care. Then, the fourth part uses both the Equal Protection Clause of the Fourteenth Amendment and the Due Process Clause of the Fifth Amendment to argue the unconstitutionality of the anti‐immigrant provisions. Finally, the last part lays out the recommendation to amend the Social Security Act so that the PRWORA barriers can be removed and recent immigrant children can receive federally funded health care.     

A Roadmap for CANS Validation

In nearly every jurisdiction, juvenile or family courts will be using the Child and Adolescent Needs and Strengths (CANS) tool to assess whether children can safely be treated in family-like settings to meet federal Family First Prevention Services Act (FFPSA) requirements. Yet, a number of peer-reviewed publications have raised serious concerns regarding the lack of CANS validation research. Rather than reject CANS, this article provides a roadmap for validating the tool with data that jurisdictions have already collected. Courts should require these three simple analyses before relying on the assessment.     

An Intertribal Business Court

Few Indian reservations have any semblance of a private sector. Consequently, poverty and unemployment are major problems in much of Indian country. While there are many reasons why private enterprise is scarce in Indian country, one of the foremost reasons is businesses do not trust tribal courts. Businesses' distrust of tribal courts is not unique as outsiders often fear bias in foreign tribunals. Similarly, businesses are often concerned about a court's capacity to adjudicate complex disputes. Federal diversity jurisdiction was developed to allay fear of bias, and many states have developed business courts to address questions about court capacity. Tribes can overcome these issues by creating an intertribal business court (IBC). Tribes will be free to sculpt the IBC as they see fit. However, the IBC's intertribal nature will help reduce fears of bias, and an IBC's focus on business disputes will answer doubts about court capacity. An IBC will also make tribal law more accessible, further increasing confidence in this new tribunal. As businesses gain greater confidence in tribal legal institutions through the IBC, they will be more likely to operate in Indian country. Accordingly, the IBC could help to transform tribal economies.     

Baby Doe, Congress and the states: challenging the federal treatment standard for impaired infants

In its amendments to the Child Abuse Prevention and Treatment Act, Congress set forth a strict standard for treatment of impaired infants. The statute, shaped by right-to-life groups and certain medical organizations, calls for aggressive treatment in virtually all cases, regardless of the degree of suffering imposed and the burdens and risks involved. The federal rule evidences deep distrust of parental decisionmaking, relegating most parents to a nonparticipatory bystander role. Congress did not make its rule binding on the states. Rather, it conditioned the receipt of federal funds upon incorporation of the rule into each state's law. Most states have accepted the condition, largely through rulemaking by state child abuse agencies. This article challenges the authority of state administrators to promulgate these rules, and argues that state constitutions, little mentioned in the Baby Doe debate thus far, may prohibit many states from adopting the federal standard. Ordering medical interventions that perpetuate extreme conditions of physical and mental devastation, subjecting infants to grave suffering for uncertain benefits, and depriving parents of virtually all decisionmaking power violates the norm of governments constitutionally committed to individual liberty, human dignity and family autonomy. A constitutionally sound approach to this issue would permit careful, ethical deliberation, attention to the individual circumstances of each infant Doe and a reasonable degree of parental control.     

Chapter 10: International Child Custody and Abduction Cases

This chapter will familiarize judges in the U.S. with the state and federal law applicable to international child custody, visitation and abduction disputes. These laws are UCCJA s? 23, the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention), and the International Child Abduction Remedies Act (ICARA). When a custody order from a foreign country is presented for recognition and enforcement, UCCJA § 23 controls. If notice and opportunity to be heard were given to all affected persons, state courts are to enforce foreign custody decrees. When a petition is filed seeking the prompt return of a child to another country based on allegations that the child's removal or retention was wrongful, the Hague Convention and ICARA govern. If the child's removal or retention is wrongful within the meaning of the Convention, and no exceptions to return are proved, a court in the U.S. must order the child's return forthwith. A return order is not a decision on the merits of custody.     

PREVENTING JUDICIALLY MANDATED ORPHANS

The courts intrude into the sancity of family relationships too often, especially with respect to impoverished families. Many circumtances found in such families, including economic factors, employment, and drug and alcohol abuse, are prevalent in poor communities. Instead of stripping children from their parents, the courts should aid families by targeting common problems and helping to preserve the parent-child relationship. This article focuses on the conflicting interests comprising the child protective system, some federal and state child welfare legislation, the idea of increasing the standard of proof in termination Not only is that proceedings, and the constitutionality of relecant legislation and its implementation. Not only is that legislation unconstitutional, but it is unfair to impovershed families, and not completely ineffective at reaching its goal.     

RETHINKING JUVENILE STATUS OFFENSE LAWS: CONSIDERATIONS FOR CONGRESSIONAL REVIEW OF THE JUVENILE JUSTICE AND DELINQUENCY PREVENTION ACT

Families struggling with a breakdown in communication, trying to control the behavior of an unruly child, or experiencing a crisis often look for outside help. Many families, particularly those without resources to pay for private support, turn to their local status offense system. Status offenders are young people charged with behavior unique to their status as juveniles such as running away, truancy, or disobedience. In 2007, Congress will begin to consider reauthorization of the Juvenile Justice Delinquency Prevention Act (JJDPA), the federal act related to status‐offender policy. By providing an overview of recent state status‐offense legislation and case law, this article identifies issues to be addressed by Congress in reauthorizing the JJDPA.     

Evaluating the Child Abuse and Neglect Institute: Does Training Affect Decision‐Making?

Traditionally, training evaluations have focused on participants' satisfaction and self‐reported knowledge gain. The current study uses a different approach to evaluate the Child Abuse and Neglect Institute (CANI), a training program designed to educate judicial officers on best practices in child abuse and neglect cases. CANI participants were asked to review a case scenario and render decisions about the case before and after the trainings. Findings suggest CANI has several positive impacts on judicial decision‐making, including an increased willingness to engage the father, an increased focus on the child, and increased motivation to comply with the Indian Child Welfare Act.     

Afterschool snacks in the Child and Adult Care Food Program. Final rule

This final rule incorporates into the Child and Adult Care Food Program (CACFP) regulations the provisions of the William F. Goodling Child Nutrition Reauthorization Act of 1998, which authorized afterschool care centers meeting certain criteria to be reimbursed for snacks served to at-risk children 18 years of age and younger. This rule establishes the eligibility of at-risk afterschool care centers to serve free snacks to children who participate in afterschool programs. The centers, which must be located in low-income areas, are reimbursed at the free rate for snacks. The intended effect of this rule is to support afterschool care programs through the provision of snacks that meet CACFP meal pattern requirements. The additional benefits provided by the 1998 reauthorization act and codified by this final rule were extended to institutions and children immediately after enactment. These changes were originally proposed by the Department in a rulemaking published on October 11, 2000.